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ELCPartially AllowedApplications dated 22nd March 2021 and 22nd June 2021 (Petition relating to LR No. 19917)· [2021] KEELC 592 (KLR)

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)

Environment and Land Court
23 November 2021
1,820 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determined two notices of motion by the Petitioner/Applicant. The first sought vacation of orders of 22nd March 2021 dismissing the applicant's application dated 12th November 2020, which had been dismissed when counsel and the applicant failed to attend, counsel having expected a virtual hearing under Covid-19 protocols. The applicant argued the application was filed promptly, that an advocate's mistake should not be visited on the client, and relied on Mohamed Godan Jasro v Maxwel Otieno Odongo. The 2nd Respondent, 3rd Interested Party and 4th Respondent opposed, relying on authorities warning against sanitising advocate negligence and stressing delay and want of merit. The court, guided by Mbogo v Shah and the 'sufficient cause' standard from the Law Society of Kenya case, took judicial notice of the hybrid court system then in operation, found counsel's explanation excusable, held no prejudice would befall the respondents, and allowed reinstatement. The second application, unopposed, sought to restrain the 1st Respondent from auctioning LR No. 19917 pending determination of the petition; it was allowed, effectively settling the substance of the 12th November 2020 application except the request to refer the petition to the Chief Justice for constitution of a bench of at least three judges, which was reserved for oral argument. Costs were awarded in the cause.

Key legal issues

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01

Whether counsel's mistaken expectation of a virtual hearing constitutes sufficient reason to reinstate a dismissed application

Holding

Yes; in the Covid-19 hybrid-court period the explanation sufficed

Reasoning

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.

p. 3
02

Whether an unopposed application to restrain an auction of the suit land should be allowed

Holding

Allowed as prayed

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Applications dated 23rd March 2021 and 22nd June 2021 allowed as prayed
  2. 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. 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. 4.Parties to schedule a date in the registry within 14 days
  5. 5.Costs of the applications in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 [1]

Cases cited (7)

  • Mohamed Godan Jasro v Maxwel Otieno Odongo
    [2021] eKLR
  • John Nahashon Mwangi v Kenya Finance Bank Limited (in liquidation)
    [2015] eKLR
  • Peter Kiplagat Rono v Family Bank Limited
    [2018] eKLR
  • Bains Construction Co. Ltd v John Mzare Ogowe
    [2011] eKLR
  • Farid Abdul Ali v Mohamed Farouk Adam t/a Farouk Adam & Co. Advocates
    [2017] eKLR
  • Mbogo v Shah
    [1968] EA 93
  • The Hon. Attorney General vs the Law Society of Kenya & Another
    Civil Appeal (Application) No. 133 of 2011 (ur)
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.