Taireni Association of Mijikenda v North Witu Ranching Limited & 9 others; Kipini Wildlife and Botanical Conservatory Trust & 3 other (Interested Parties) [2021] KEELC 592 (KLR)
The bottom line
#A Kenyan court reinstated a landowner's case dismissed after a lawyer missed a hearing, and blocked an auction of the disputed land meanwhile.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel's mistaken expectation of a virtual hearing constitutes sufficient reason to reinstate a dismissed application
Yes; in the Covid-19 hybrid-court period the explanation sufficed
The court took judicial notice that courts were operating a hybrid system due to Covid-19 protocols, so counsel's assumption that the hearing would be virtual was a reasonable, excusable mistake. It weighed the prejudice to both sides, found none to the respondents if the application was heard on merit, and held parties should not steal a match.
Whether an unopposed application to restrain an auction of the suit land should be allowed
Allowed as prayed
The application dated 22nd June 2021 seeking to restrain the 1st Respondent from auctioning LR No. 19917 pending determination of the petition was not opposed by the respondents, and in effect settled the substance of the 12th November 2020 application except the referral-to-CJ issue.
Legal principles established
#- The discretion to set aside ex parte orders exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction
- Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful without unexplained gaps
Court orders
#- 1.Applications dated 23rd March 2021 and 22nd June 2021 allowed as prayed
- 2.Application dated 12th November 2020 allowed to the extent that status quo be maintained in respect of the occupation of the suit land pending the hearing and determination of the petition
- 3.The issue whether the matter should be referred to the Chief Justice for constitution of a Bench of not less than three Judges to be argued in court
- 4.Parties to schedule a date in the registry within 14 days
- 5.Costs of the applications in the cause
- Jurisdiction invoked
- Inherent powers of the court to make orders necessary for the ends of justice and to prevent abuse of the process of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Taireni Association of Mijikenda v North Witu Ranching Limited & 9 others; Kipini Wildlife and Botanical Conservatory Trust & 3 other (Interested Parties) [2021] KEELC 592 (KLR)", Case Analysis (2021). Applications dated 22nd March 2021 and 22nd June 2021 (Petition relating to LR No. 19917). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/592/eng@2021-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.