Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 23rd January 2019 (suit arising from plaint dated 13th March 2014)· [2021] KEELC 3982 (KLR)

Bharat Kumar Raojighai Patel & another v Christopher Otieno Ougo & 3 others [2021] KEELC 3982 (KLR)

Environment and Land Court
18 March 2021
LKL. Komingoi
726 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court reinstated a land suit dismissed after a lawyer missed a hearing date, but made the plaintiffs pay the costs of fixing it.

What this practically means

#

Executive summary

#
This was a notice of motion dated 23rd January 2019 by the plaintiffs/applicants seeking to set aside and reinstate their plaint dated 13th March 2014, which had been dismissed on 24th September 2018 following their failure to attend court. The motion was brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 and Order 12 Rule 7 of the Civil Procedure Rules and Article 159 of the Constitution, supported by the affidavit of Justus Obuya Advocate, and opposed by grounds of opposition filed by the respondent. The parties canvassed the application by written submissions pursuant to a consent direction of 15th October 2019. The court, L. Komingoi J, framed a single issue: whether the application was merited. Relying on Order 12 rule 7, which permits a court to set aside or vary a dismissal upon such terms as may be just, and on the applied authorities of Belinda Murai & Others v Amos Wainaina and D.T. Dobie & Co. Ltd v Joseph Mbaria Muchina, the court accepted that the non-attendance was an inadvertent mistake by counsel rather than a deliberate attempt to delay justice. It found the firm had been diligent and that reinstatement would occasion no prejudice to the defendants. The court exercised its discretion in favour of the plaintiffs, allowed the application, set aside the dismissal order and reinstated the suit, but ordered the plaintiffs/applicants to bear the costs of the application. The ruling was delivered in Nairobi on 18th March 2021.

Key legal issues

#
01

Whether the dismissal of the plaintiffs' suit on 24th September 2018 for non-attendance should be set aside and the suit reinstated

Holding

The application was allowed; the dismissal order was set aside and the suit reinstated, with no prejudice found to the defendants

Reasoning

The court considered Order 12 rule 7 which permits setting aside a dismissal on such terms as may be just. It accepted the explanation of inadvertent mistake in the affidavit of Justus Obuya Advocate, invoked the liberal approach in Belinda Murai and D.T. Dobie, and found that reinstatement would occasion no prejudice to the defendants. It therefore exercised its discretion in favour of the plaintiffs.

p. 2

Legal principles established

#
  • Under Order 12 rule 7, a court may set aside or vary a judgment entered or a dismissal upon such terms as may be just
  • A mistake by counsel, even by experienced counsel, should be rectified where the interests of justice so dictate

Court orders

#
  1. 1.The court set aside its order of 24th September 2018 dismissing the plaintiffs' plaint dated 13th March 2014 and reinstated the suit
  2. 2.The costs of the application to be borne by the plaintiffs/applicants

Authorities

#

Legislation

  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 12 Rule 7
  • Constitution of Kenya, 2010Article 159

Cases cited (2)

  • Belinda Murai & Others vs Amos Wainaina
    [1978] KLR 278
  • D. T. Dobie & Co. Ltd vs Joseph Mbaria Muchina
    CA 37 of 1978
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 and Order 12 Rule 7 of the Civil Procedure Rules; Article 159 of the Constitution of Kenya, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bharat Kumar Raojighai Patel & another v Christopher Otieno Ougo & 3 others [2021] KEELC 3982 (KLR)", Case Analysis (2021). Notice of Motion dated 23rd January 2019 (suit arising from plaint dated 13th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3982/eng@2021-03-18

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