Pwani Baridi Waterways Limited v Linus Chira Muya & another [2022] KEELC 311 (KLR)
The bottom line
#A Kenyan court reinstated a land dispute application dismissed after a lawyer couldn't log into a virtual hearing, confirming technical glitches won't cost parties their day in court.
What this practically means
#Executive summary
#Key legal issues
#Sufficient cause for non-attendance at a virtual hearing
The Applicant offered sufficient reasons for failing to attend the virtual hearing on 23/6/2021.
The court adopted the Supreme Court of India's definition of 'sufficient cause' in Parimal vs Veena, which requires that the party not have acted negligently or inactively. Accepting counsel's account of logging-in difficulties, and noting that courts are still perfecting virtual practice, the judge declined to demand strict proof of the technical glitches.
Whether the delay in filing the review application was inordinate
The delay of approximately three months was not inordinate in the circumstances and should not drive the Plaintiff from the seat of justice.
Relying on Utalii Transport Company Ltd v NIC Bank, the court held that what amounts to inordinate delay depends on the circumstances of each case. The delay of about 106 days, weighed against the importance of hearing on merit an application seeking to preserve the suit property, did not disqualify the Plaintiff from the court's discretion.
Right to be heard on merit and Article 159 judicial authority
The court invoked Articles 50 and 159 of the Constitution to have parties heard on merit without undue regard to technicalities.
Guided by Principal Mariakani Secondary School v Maglena Amina Kamau, the court emphasised the constitutional right to be heard and the directive to administer justice without undue regard to procedural technicalities, supporting reinstatement of the dismissed injunction application.
Legal principles established
#- A court's discretion to set aside orders for non-attendance is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, but not to assist deliberate obstruction or delay.
- Strict proof of technical/log-in difficulties in virtual court proceedings will not be required, as courts take judicial notice that such challenges abound in the new practice.
Court orders
#- 1.The Notice of Motion application dated the 8/2/2021 be and is hereby reinstated
- 2.The interim orders granted on 16/2/2021 are hereby reinstated and extended pending the hearing and determination of the Notice of Motion application dated the 8/2/2021
- 3.The Notice of Motion application dated the 8/2/2021 should be fixed for hearing inter parties within the next 30 days in default it shall stand dismissed
- 4.Costs shall be in the cause
- Jurisdiction invoked
- Articles 50 and 159(1) of the Constitution of Kenya 2010; Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mang’ati v ABSA Bank Limited ((Formerly Barclays Bank Of Kenya Limited)) (Cause 162 of 2020) [2023] KEELRC 1228 (KLR)[2023] KEELRC 1228 (KLR)18 May 2023
Cite this brief
#Cite this brief
Caselaw, "Pwani Baridi Waterways Limited v Linus Chira Muya & another [2022] KEELC 311 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/311/eng@2022-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.