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ELCPartially AllowedNot stated in judgment (application dated 11/5/2021)· [2021] KEELC 2203 (KLR)

Redeemed Gospel Church v John Egielan; William Abok (Interested Party) [2021] KEELC 2203 (KLR)

Environment and Land Court
6 August 2021
MNMwangi Njoroge
820 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff's suit was dismissed with costs on 4/5/2021 for want of prosecution after counsel failed to trace his client, even though the defendant's advocate had indicated no objection to an adjournment. The plaintiff, a church, filed a Notice of Motion dated 11/5/2021 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 15 of the Civil Procedure Rules, seeking setting aside of the dismissal order, reinstatement of the suit and costs. The application was supported by an affidavit of the plaintiff's counsel showing that the plaintiff's witness, Joshua Masika, had been located on 3/5/2021 but fell ill and sought medical attention on the hearing date, evidenced by a bus receipt from Lodwar to Kitale and a medical attendance sheet from Kitale county hospital. The defendant filed strong grounds of opposition, arguing inter alia that the application was frivolous, that the affidavit offended Order 19 Rule 3, and that default in prosecution has consequences. The interested party did not oppose. The court framed a single issue: whether the applicant deserved the setting aside and reinstatement orders. Holding that the documentary evidence established a plausible reason for non-attendance, and that the defendant's concession to the adjournment disentitled it from stringent opposition, and noting the suit concerned a land dispute affecting an organization possibly with many members, the court allowed the application, reinstated the suit for hearing on the merits, directed each party to bear their own costs of the application, and fixed a mention for 6/10/2021 for issuance of a hearing date.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated

Holding

Yes - the plaintiff's witness had a plausible reason (illness, evidenced by a bus receipt and medical attendance sheet) for non-attendance, and the defendant had consented to the adjournment; discretion exercised in favour of the plaintiff

Reasoning

The court found documentary proof that the plaintiff's witness travelled to Kitale and was ill on the hearing date, providing a plausible explanation for non-attendance. The defendant had not objected to the adjournment on the dismissal date and gave no indication of readiness to proceed. The suit involved a land dispute affecting an organization possibly with many members, so reinstatement was merited.

p. 2

Legal principles established

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  • A party who concedes to an adjournment cannot thereafter strenuously oppose setting aside of a dismissal for non-attendance

Court orders

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  1. 1.The order dismissing the plaintiff's suit together with all consequential orders issued on 4/5/2021 set aside
  2. 2.The plaintiff's suit reinstated for hearing on the merits
  3. 3.Each party to bear their own costs of the application
  4. 4.Suit to be mentioned on 6/10/2021 for issuance of a hearing date

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure RulesOrder 19 Rule 3
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 15 of the Civil Procedure Rules

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, "Redeemed Gospel Church v John Egielan; William Abok (Interested Party) [2021] KEELC 2203 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 11/5/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2203/eng@2021-08-06

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