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ELCAllowedNot stated in the judgment· [2022] KEELC 433 (KLR)

Duncan Onkoba Momanyi & another v Joyce Kathini Kyongo [2022] KEELC 433 (KLR)

Environment and Land Court
20 April 2022
TMT. Murigi
827 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a landowner's dismissed application, confirming that illness and prompt action justify reviving a missed court date.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni on a Notice of Motion dated 12th October 2021 brought under Article 159 of the Constitution, Sections 1A and 3A of the Civil Procedure Act, and Orders 51 rule 1 and 12 Rule 7 of the Civil Procedure Rules 2010. The applicant sought reinstatement of interim orders issued by Hon Justice Mbogo on 29th June 2021, setting aside of a decision made on 1st October 2021 by Hon Lady Justice Murigi Theresa Wairimu dismissing the earlier application dated 28th June 2021 for want of prosecution, and costs in the cause. The dispute concerns land parcel Makueni/Nguu Ranch/3691. The applicant explained his non-attendance at the mention on grounds that his counsel was taken ill, and that the court's e-filing and cause-list systems had not been fully operational. The respondent was served but did not enter appearance or respond. The court framed a single issue: whether the applicant was entitled to the orders sought. Relying on Order 12 Rule 7, it held that the reinstatement application was filed promptly, that the applicant gave plausible reasons for non-attendance, and that the defendant would suffer no prejudice. The court allowed the application, set aside the dismissal order, reinstated the application dated 28th June 2021, reinstated the interim orders of 29th June 2021, and ordered costs in the cause. A material discrepancy exists in the dispositive wording, which refers to an order of 22nd October 2019 dismissing the defendants' application.

Key legal issues

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01

Whether the dismissal for want of prosecution of 1st October 2021 should be set aside and the application dated 28th June 2021 reinstated

Holding

The dismissal was set aside and the application reinstated because the applicant gave plausible reasons for non-attendance (illness) and moved promptly, and no prejudice would befall the defendant.

Reasoning

The court applied Order 12 Rule 7 of the Civil Procedure Rules allowing the court to set aside or vary a dismissal upon just terms. It found the applicant's explanation that he was taken ill and rushed to his doctor plausible, noted the application to reinstate was filed promptly and without delay, and found no prejudice to the defendant if the orders were granted. The respondent did not enter appearance or file any response.

p. 2
02

Whether interim orders issued by Hon Justice Mbogo on 29th June 2021 should be reinstated

Holding

The interim orders were reinstated as part of the disposition.

Reasoning

With the dismissal set aside and the application dated 28th June 2021 reinstated, the court restored the interim protective orders issued when the suit was filed, restraining the defendant from disposing of or interfering with parcel Makueni/Nguu Ranch/3691 pending hearing and determination of the reinstated application.

p. 2

Legal principles established

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  • Under Order 12 Rule 7, the court may set aside or vary a judgment or dismissal order entered under Order 12 upon such terms as may be just.

Court orders

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  1. 1.The order of the court dismissing the application is set aside
  2. 2.The application dated 28th of June 2021 is reinstated
  3. 3.The interim order issued by Hon Justice Mbogo on 29th June, 2021 is reinstated
  4. 4.The costs of the application be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A and 3A
  • Civil Procedure Rules 2010Order 51 rule 1
  • Civil Procedure Rules 2010Order 12 Rule 7
Jurisdiction invoked
Article 159 of the Constitution, Sections 1A and 3A of the Civil Procedure Act, Order 51 rule 1 and Order 12 Rule 7 of the Civil Procedure Rules 2010 and the inherent jurisdiction of the court

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, "Duncan Onkoba Momanyi & another v Joyce Kathini Kyongo [2022] KEELC 433 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/433/eng@2022-04-20

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