Johnson Kimathi Kabura & another v Makokoyo Nchoke Leshani & 5 others [2021] KEELC 3744 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to reopen a land dispute already settled by consent, holding litigants bear the consequences of their advocate's failures.
What this practically means
#Executive summary
#Key legal issues
#Whether the order marking the suit as settled on 25th November, 2019 should be set aside
The application was dismissed as an unmerited afterthought and an abuse of the court process.
The court noted the consent of 23rd May, 2014 was adopted as an order on 4th August, 2014, settling the boundary dispute, and was implemented by amending the RIM and issuing fresh titles. An earlier attempt to set aside the consent was dismissed on 8th May, 2019, and leave to appeal out of time was refused by the Court of Appeal. The applicants offered no plausible reason to reopen the case, and their blame of their former advocate could not shift the consequences onto the other parties or the court.
Whether the allegation that the Plaintiffs' erstwhile advocate lacked a practicing certificate in 2019 justified setting aside the order
No; the consequences of the counsel's failures fall on the litigant who instructed him, per the Court of Appeal decision in the same matter.
The court adopted the reasoning of Martha Koome JA in the applicants' own failed application for extension of time, that a case belongs to the litigant, who bears the duty of diligently following up the matter, and that the consequences of counsel's failure to communicate or to renew a practicing certificate cannot be borne by the opposing party or the court.
Legal principles established
#- Where a consent order settling a dispute has been adopted and implemented, and the substratum of the suit has changed, the court will not reopen the matter absent a plausible reason.
- Consequences of a litigant's counsel's failure to communicate the outcome of litigation or renew his practicing certificate must be borne by the litigant who chose the counsel.
Court orders
#- 1.The Plaintiffs' further affidavit filed on 7th December, 2020 expunged from the record
- 2.The application dated 13th February, 2020 dismissed with costs to the Defendants
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johnson Kimathi Kabura & another v Makokoyo Nchoke Leshani & 5 others [2021] KEELC 3744 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3744/eng@2021-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.