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ELCDismissedNotice of Motion dated 7th February 2020 in ELC Appeal (arising from CMCC No. 552 of 2013)· [2021] KEELC 2032 (KLR)

Susan Anna Karanja v Francis Muoka Matheka & 5 others [2021] KEELC 2032 (KLR)

Environment and Land Court
30 July 2021
OAO. A. ANGOTE
1,204 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a landowner's bid to revive her stay application because her advocate missed a hearing date his own office had fixed.

What this practically means

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Executive summary

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By a Notice of Motion dated 7th February 2020, the Appellant sought to set aside a dismissal order issued on 4th February 2020 and to reinstate her Notice of Motion dated 20th September 2019, which sought stay of execution of the judgment in CMCC No. 552 of 2013, in which the trial court had ordered cancellation of her title deed over land Parcel Number Athi River/Athi River Block 1/208, pending appeal. Her advocate deponed that he believed the matter was scheduled for mention on 4th February 2020 in respect of a different application dated 31st October 2019, and that his own application was due for hearing on 20th February 2020. The Respondents opposed, asserting the advocate had himself fixed the matter for inter-partes hearing on 4th February 2020, that a reply had been filed, and that the Appellant had a habit of allowing applications to lapse and then seeking reinstatement. The court's record confirmed that the Appellant's advocate's assistant fixed the 4th February 2020 date ex parte and that hearing notices were served on the Respondents. The court held that a party invoking the court's discretion must place material before it to justify the exercise of that discretion, failing which it would appear capricious or whimsical. The advocate failed to explain why he did not attend court on a date fixed by his own office or why he misdiarized the date. The application dated 7th February 2020 was dismissed with costs. The stay application was not reinstated, leaving the Appellant exposed to execution of the decree.

Key legal issues

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01

Whether sufficient cause was shown for non-attendance to warrant reinstatement of an application dismissed for want of prosecution

Holding

No sufficient cause was shown; a mere impression or honest belief without explanation of failure to diarize a self-fixed date does not justify reinstatement.

Reasoning

The record showed the Appellant's advocate's assistant fixed the 4th February 2020 hearing date ex parte and the advocate served a hearing notice on the Respondents. Despite fixing the date himself, the advocate did not attend. His claim that he believed the matter was for 20th February 2020 did not explain why he failed to diarize the date his own office obtained.

p. 2
02

The test for reinstatement of a suit or application dismissed for non-attendance

Holding

The court has a general discretion to reinstate, but the applicant must place material before the court to justify the exercise of discretion in his favour.

Reasoning

Counsel submitted that the court is clothed with general discretion to reinstate a suit or application dismissed for non-attendance so long as sufficient cause is shown. The court accepted the framing but held that the discretion must be anchored on material justifying its exercise, failing which the exercise would appear capricious or whimsical. The Appellant offered no such material.

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Legal principles established

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  • A party seeking the exercise of the court's discretion in its favour must place material before the court to justify it, otherwise the exercise of discretion will appear capricious or whimsical.

Court orders

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  1. 1.Dismissal of the Application dated 7th February 2020 with costs
On appeal from
Magistrates' Court
CMCC No. 552 of 2013
Jurisdiction invoked
Inherent discretion to reinstate an application dismissed for non-attendance (Appellant's appeal pending from CMCC No. 552 of 2013)

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, "Susan Anna Karanja v Francis Muoka Matheka & 5 others [2021] KEELC 2032 (KLR)", Case Analysis (2021). Notice of Motion dated 7th February 2020 in ELC Appeal (arising from CMCC No. 552 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2032/eng@2021-07-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.