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ELCPartially AllowedNot stated in the excerpt provided (Makueni; application dated 19th January, 2021)· [2021] KEELC 4052 (KLR)

Joseph Kisilu Nzau v David Maithya Munyasya & another [2021] KEELC 4052 (KLR)

Environment and Land Court
2 March 2021
CMC. G. Mbogo
504 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Makueni Environment and Land Court let a landowner file a late court response, but refused to undo earlier orders and made them pay the legal costs.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Makueni determines a notice of motion dated 19th January 2021 brought by the Plaintiff/Applicant under Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The Applicant sought, among other prayers, setting aside of the proceedings and orders given on 7th/8th August 2020 and subsequent orders, leave to file a replying affidavit and submissions to the Defendants' application dated 16th July 2020, and that the draft replying affidavit annexed to the application be deemed duly filed. The Applicant's counsel, Anne M. Munyao, explained that the failure to respond was attributable to the COVID-19 pandemic, which forced closure of the firm's Makueni branch office where the file was located, arguing that a mistake of counsel should not be visited on an innocent litigant and that it was in the interests of justice that the Applicant be heard. The Defendants/Respondents, through F. M. Masika's replying affidavit sworn on 27th January 2021, opposed the application as not anchored on any known provisions of law and as an act of disobeying court orders. No submissions were filed in compliance with the directions of 28th January 2021, so the court determined the matter on the pleadings. Mbogo J held that the court's inherent jurisdiction under Section 3A justified giving the Applicant an opportunity to respond, but took exception to the dereliction, noting evidence of service on the Applicant on 28th July 2020 and 10th August 2020. The application was held to have partially succeeded: prayer 4 (deeming the draft replying affidavit duly filed) was allowed, the parties were directed to comply with the order of 28th July 2020, and costs were awarded to the Defendants/Respondents. The broader prayer to set aside the orders of 7th/8th August 2020 was not granted.

Key legal issues

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01

Whether the court should exercise its inherent jurisdiction under Section 3A of the Civil Procedure Act to allow the Applicant an opportunity to respond despite non-compliance

Holding

The court exercised its discretion to grant the Applicant relief to the extent of deeming the draft replying affidavit duly filed, but declined the broader prayer to set aside the orders of 7/8/2020.

Reasoning

The court invoked Section 3A of the Civil Procedure Act, which saves the inherent power of the court to ensure justice is done and avert abuse of process. Although the Applicant's counsel blamed the COVID-19 pandemic for closing the Makueni branch office, the court noted evidence of service on the Applicant on 28th July 2020 and 10th August 2020 and took exception to the dereliction. Balancing these, the court allowed only prayer 4, directed compliance with the order of 28th July 2020, and awarded costs to the Defendants.

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02

Whether the application was anchored on known provisions of law

Holding

The court proceeded on the basis of Section 3A of the Civil Procedure Act notwithstanding the Respondents' objection that the application was not based on any known provisions of law.

Reasoning

The Respondents contended that the application was not founded on any known provisions of law and that the Applicant was disobeying court orders. The court nonetheless identified the applicable basis as the inherent jurisdiction saved by Section 3A of the Civil Procedure Act, read with Order 51 Rule 1 of the Civil Procedure Rules, 2010 under which the application was expressly brought, and proceeded to determine it on the pleadings since no submissions had been filed.

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Legal principles established

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  • Section 3A of the Civil Procedure Act preserves the inherent power of the court to do what is necessary to ensure justice is done and to avert abuse of court process.
  • A mistake on the part of counsel may warrant relief for an innocent litigant in the interests of justice.

Court orders

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  1. 1.Prayer 4 of the application allowed - the draft replying affidavit deemed duly filed
  2. 2.Parties directed to comply with the Order dated 28th July, 2020
  3. 3.Costs of the application awarded to the Defendants/Respondents
  4. 4.Prayers 3 (setting aside the proceedings and orders of 7/8/2020) not granted - only prayer 4 allowed

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 3A
  • Civil Procedure Rules, 2010Order 51 Rule 1
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power) and Order 51 Rule 1 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, "Joseph Kisilu Nzau v David Maithya Munyasya & another [2021] KEELC 4052 (KLR)", Case Analysis (2021). Not stated in the excerpt provided (Makueni; application dated 19th January, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4052/eng@2021-03-02

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