Jonathan Cheruiyot & another v Esther Mishack [2022] KEELC 442 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that internet failures during a virtual hearing are a valid excuse, reinstating an application dismissed after a lawyer couldn't connect.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants' failure to attend the virtual hearing was satisfactorily explained
The court found the explanation of network challenges confirmed by the advocate and sufficient to warrant exercise of discretion
The court noted that non-attendance by the applicants' advocate was due to network problems, a fact confirmed on affidavit by the advocate himself. Recognising that network challenges are common in virtual proceedings, the court held that a litigant caught in such a situation should not be condemned without being heard, and the right to be heard may be denied only for good cause.
Whether the use of a Notice of Motion instead of a chamber summons rendered the application incompetent
No - form cannot defeat substance under Order 51 Rule 10(2)
The respondent objected that the application was incompetent for want of form. The court rejected this, holding that the choice of a Notice of Motion rather than a chamber summons is merely a matter of form which cannot defeat an application, and that a party is entitled to be heard and this right can only be denied for good cause.
Legal principles established
#- Non-attendance caused by network challenges in a virtual hearing is an excusable ground for setting aside a dismissal for non-attendance.
- Bringing an application by Notice of Motion rather than chamber summons is a matter of form that cannot defeat an application under Order 51 Rule 10(2) of the Civil Procedure Rules.
Court orders
#- 1.The order made on 18th October, 2021 dismissing application dated 2nd September, 2021 is set aside
- 2.The application dated 2nd September, 2021 is reinstated for hearing
- Jurisdiction invoked
- Inherent discretion under the Civil Procedure Rules (Order 51 Rule 10(2)); set-aside of interlocutory dismissal order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jonathan Cheruiyot & another v Esther Mishack [2022] KEELC 442 (KLR)", Case Analysis (2022). ELC Case No. 814 of 2012 (Formerly Civil Suit No. 27 of 2012 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/442/eng@2022-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.