Board of TrusteesFull Gospel Churches of Kenya v Commissioner of Lands, Attorney General & Good News Church of Africa [2021] KEELC 1757 (KLR)
The bottom line
#A Kenyan court refused to reopen a 16-year land case against a church, ruling that litigants—not their advocates—own and must follow up their suits.
What this practically means
#Executive summary
#Key legal issues
#Whether a party who withdraws instructions from its advocate and takes away the file can be said to have been condemned unheard
No. Having withdrawn instructions and taken away the file, the 3rd Defendant was obliged to monitor the case and either act in person or instruct another advocate; it cannot claim it was condemned unheard.
The record showed the 3rd Defendant filed a defence but never complied with Order 11 by filing witness statements or documents for over 15 years. On 17th September 2020 it informed the court it had withdrawn instructions and carted away its file. The court held the litigant, not the advocate, owns the suit and must follow up its case. Having taken no steps to acquaint itself with the progress of the case, the 3rd Defendant could not blame its former advocate.
Whether the court should set aside ex-parte proceedings and judgment in the interests of justice under sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(b) of the Constitution
The discretion was declined because the 3rd Defendant was not ready to defend the suit despite numerous opportunities.
Although counsel invoked the overriding objective, inherent powers of the court and the right to a fair hearing under Article 50, the court found the 3rd Defendant had been given numerous opportunities since 2008 to comply with Order 11 and never did. Where the party itself contributed to its non-attendance and unreadiness, the court will not exercise its discretion in its favour; there must be an end to litigation.
Legal principles established
#- A suit belongs to the litigant and not the advocate; a litigant cannot blame an advocate where he took no deliberate step to acquaint himself with the position of his case.
Court orders
#- 1.The 3rd Defendant's current advocate granted leave to come on record in place of Manthi Masika & Company Advocates (prayer one)
- 2.The 3rd Defendant's Application dated 9th February 2021 dismissed with costs in respect of the remaining prayers
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159(2)(b) and Article 50 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of TrusteesFull Gospel Churches of Kenya v Commissioner of Lands, Attorney General & Good News Church of Africa [2021] KEELC 1757 (KLR)", Case Analysis (2021). Machakos HCCC (consolidated with HCCC No. 222 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1757/eng@2021-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.