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ELCDismissed· [2021] KEELC 3552 (KLR)

Florence Kirui v Emily Ngetich & another [2021] KEELC 3552 (KLR)

Environment and Land Court
29 April 2021
MOM.C. Oundo
1,775 words in judgment
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The bottom line

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A Kericho land court refused to reinstate a dismissed application because the defendants' explanation for missing court was unproven and their overall conduct showed inordinate delay.

What this practically means

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Executive summary

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The Applicants, defendants in land suit Kericho SRM Civil Suit No. 6 of 2008, moved the Environment and Land Court by Notice of Motion dated 7th June 2019 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, seeking reinstatement of their application dated 25th February 2019 (which sought leave to appeal out of time against the Magistrate's ruling and stay of execution), dismissed for non-attendance on 20th May 2019. They argued their counsel was held up in Bomet and had briefed another counsel who arrived late; that the land dispute was emotive and they should be heard on merit; and that counsel's mistakes should not be visited on an innocent party. The Respondent opposed, contending the Applicants were engaging in serial delay - judgment had been entered in her favour with a decree issued on 13th October 2016 for eviction from L.R No. Kericho/Kiptere/3638 - the first application was filed a year and nine months later and dismissed, and no cause lists supported the excuse about conflicting court attendances. Justice M.C. Oundo, applying Shah vs Mbogo, held the discretion to set aside orders exists to avoid injustice from accident or excusable mistake, not to assist deliberate obstruction. Finding no cause lists annexed, the court concluded the Applicants were not honest and their explanation implausible. Relying on Bains Construction, JKUAT vs Mbeera and Rajesh Rughani, the court held the Applicants' conduct did not warrant the discretion. The application was dismissed with costs to the Respondent on 29th April 2021.

Key legal issues

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01

Whether the reasons advanced for counsel's non-attendance amount to sufficient reason to reinstate the dismissed application

Holding

They do not; the explanation was implausible and unverified by cause lists, and the Applicants' conduct showed delay

Reasoning

Counsel claimed she was in Bomet court and briefed another counsel to hold her brief, but that counsel also failed to attend. No cause lists or mention of the parties in the other matters were annexed to support the claim. The court found the Applicants dishonest and their explanation implausible. Their history of inordinate delay - judgment in 2016, first application only in 2018 - did not warrant the discretionary relief.

p. 2

Legal principles established

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  • The court's discretion to set aside its order is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist one who deliberately obstructs or delays justice

Court orders

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  1. 1.The Notice of Motion dated 7th June 2019 is dismissed
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51

Cases cited (6)

  • James Mwangi Gathara & Another vs. Officer Commanding Station Loitoktok & 2 Others
    [2018] eKLR
  • Peter Kiplangat Rono vs Family Bank Limited
    [2018] eKLR
  • Shah vs Mbogo & Another
    (1967) EA 116
  • Bains Construction Co. Ltd. vs John Mzare Ogowe
    [2011] eKLR
  • The Council, Jomo Kenyatta University of Agriculture and Technology vs Joseph Mutuura Mbeera & 3 Others
    [2015] eKLR
  • Rajesh Rughani vs Fifty Investment Ltd. & Another
    [2005] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 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, "Florence Kirui v Emily Ngetich & another [2021] KEELC 3552 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3552/eng@2021-04-29

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