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ELCDismissedNot stated in judgment (Notice of Motion dated 31st October 2019)· [2021] KEELC 2043 (KLR)

Hamisi Masha Mkweha (Suing as the Attorney of Nyevu Mbita Kaembeni) v Beatrice Moraa Gichana & 2 others [2021] KEELC 2043 (KLR)

Environment and Land Court
28 July 2021
CYC. K. Yano
2,041 words in judgment
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The bottom line

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The Mombasa Environment and Land Court dismissed a landowner's attempt to revive his suit, confirming courts will not excuse clients who blame lawyers while doing nothing themselves.

What this practically means

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Executive summary

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The plaintiff applied by Notice of Motion dated 31st October 2019, under Article 159 of the Constitution, Sections 3A, 63(e), 80 and 100 of the Civil Procedure Act and Orders 45 and 51 of the Civil Procedure Rules, to set aside the court's dismissal orders of 7th May 2019 and relist his land suit for hearing. He argued that his advocate's court clerk, who was unwell and had not diarized the matter, failed to avail the file; that the case was part-heard; and that the advocate's mistake should not be visited on the client, who risked losing his land. The defendant, the registered proprietor who had erected a two-storey building on the suit property, opposed, citing the plaintiff's indolence over a seven-year-old suit and noting that even if the application succeeded, the suit would remain dismissed, since the 7th May 2019 orders had dismissed the plaintiff's earlier reinstatement application dated 23rd November 2018. Justice C.K. Yano found the record showed the suit was dismissed for want of prosecution under Order 17 Rule 2 on 7th November 2018, and that dismissing the reinstatement application rendered those dismissal orders alive. The court held that the clerk's defaults were attributable to the advocate under the law of agency (Myers v. Elman), that blaming advocates is insufficient (Habo Agencies), and that the plaintiff showed no personal interest in his case from about 2015. The claim that the advocate was ill was unsupported and not treated as mitigation. The application was dismissed with costs to the defendant.

Key legal issues

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01

Effect of the 7th May 2019 dismissal orders

Holding

The court had dismissed the plaintiff's reinstatement application dated 23rd November 2018, which meant the orders dismissing the suit for want of prosecution under Order 17 Rule 2 were rendered alive; the record did not support the contention that the suit was dismissed for failure to file an amended plaint

Reasoning

The court examined both the 23/11/2018 and 31/10/2019 applications. The 2018 application concerned an amended plaint not filed for want of filing fees, but the record showed the suit was dismissed for want of prosecution under Order 17 Rule 2 on 7th November 2018. Dismissing the 2018 reinstatement application on 7th May 2019 revived the dismissal of the suit, so allowing the present application alone would still leave the suit dismissed.

p. 2
02

Whether mistake of counsel/clerk should be visited on the client

Holding

No sympathy: the law of agency binds the principal to the acts of his clerk, and the plaintiff himself showed no interest in the suit over several years

Reasoning

Relying on Tana and Athi Rivers Development Authority and Myers v. Elman, the court held that the clerk's actions became the advocate's actions. The plaintiff's claim that his advocate was ill was unsupported and was not advanced in the advocate's own affidavit. The plaintiff, a neighbour of the advocate, took no steps to come on record in person from about 2015, demonstrating indolence.

p. 3

Legal principles established

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  • Courts will readily excuse a mistake of counsel where it affords just, expeditious and holistic disposal, but the discretion is not automatic; counsel owes duties to the court and to the other side
  • A principal (solicitor/client) is bound by the acts and defaults of his clerk or agent within the scope of authority
  • Parties bear responsibility to show interest in and follow up their cases even when represented by counsel

Court orders

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  1. 1.The application dated 31st October 2019 is dismissed
  2. 2.Costs of the application to the Defendant

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 3A, 63(e), 80, 100
  • Civil Procedure Rules, 2010Order 45; Order 51 Rules 3, 5 & 15; Order 17 Rule 2

Cases cited (4)

  • Tana and Athi Rivers Development Authority Versus Jeremiah Kimigho Mwakio & 3 Others
    Civil Appeal No. 41 of 2014 (2015) eKLR
  • Myers v. Elman
    [1939] 4 ALL E.R 484
  • Ahmed v. Highway Carriers
    [1986] LLR 258 (CAK)
  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    [2015] eKLR
Jurisdiction invoked
Article 159 of the Constitution of Kenya; Sections 3A, 63(e), 80 & 100 of the Civil Procedure Act; Order 45 & Order 51 Rules 3, 5 & 15 of the Civil Procedure Rules, 2010

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, "Hamisi Masha Mkweha (Suing as the Attorney of Nyevu Mbita Kaembeni) v Beatrice Moraa Gichana & 2 others [2021] KEELC 2043 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 31st October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2043/eng@2021-07-28

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