Jonathan Mbaya Mketta & 2 others v Witu Nyangoro Ranch (DA) Co. Ltd & 3 others [2022] KEELC 769 (KLR)

Environment and Land Court of Kenya

16 March 2022

MOM.A. Odeny

1,091 words in judgment

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The bottom line

What this practically means

Executive summary

This ruling of the Environment and Land Court at Malindi determined a Notice of Motion dated 15th October 2021 in which the Plaintiff sought review and setting aside of ex parte orders made on 13th October 2021 dismissing the suit for want of prosecution, and reinstatement of the suit. The Applicant's Counsel deponed that on the material date he experienced network connectivity challenges and by the time he successfully logged in at 9.45 a.m., the matter had proceeded ex parte and a ruling had been delivered; the court had logged off from the virtual platform immediately after the call over. Counsel relied on Sammy Maina v Stephen Muriuki, Patel v E.A Cargo Handling Services Ltd, Elosy Murugi Nyaga v Tharaka Nithi County Government and CMC Holdings Ltd v Nzioki on the court's wide discretion to set aside ex parte decisions. The Defendant filed neither a response nor submissions. The court framed a single issue: whether there was a basis to exercise its discretion to set aside the 13th October 2021 order and reinstate the suit. Applying Section 3A of the Civil Procedure Act, Order 51 rule 15 of the Civil Procedure Rules, and the principles in Ivita v Kyumbu, Shah v Mbogo, Wachira Karani v Bildad Wachira and Richard Nchapai Leiyangu v IEBC, the court took judicial notice of teething problems and shaky internet connectivity with virtual courts, found sufficient cause established, set aside the ex parte orders, reinstated the suit for main hearing, directed the Plaintiff to fix it for hearing within 30 days failing which it would stand dismissed, and ordered each party to bear their own costs. Judgment delivered on 16th March 2022 by M.A. Odeny J.

Key legal issues

Whether sufficient cause was shown to set aside the ex parte dismissal of the suit for want of prosecution

Holding

Yes - the Applicant's Counsel's failure to appear on the virtual platform due to network connectivity problems constituted sufficient cause, and the ex parte orders of 13th October 2021 were set aside and the suit reinstated

Reasoning

The court's discretion under Section 3A of the Civil Procedure Act and Order 51 rule 15 of the Civil Procedure Rules is wide and unfettered, meant to avoid injustice from accident, inadvertence or excusable mistake. Counsel deponed that technical network challenges delayed his logging in until 9.45 a.m., after the matter had proceeded ex parte and ruling delivered. The court took judicial notice of teething problems with virtual court technology, each case being considered individually, and found sufficient cause established.

p. 2

Legal principles established

The court's discretion to set aside ex parte orders is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the course of justice
Sufficient cause for setting aside an ex parte decision is a question of fact to be determined on the varied and special circumstances of each case; there is no straight-jacket formula

Court orders

1.The ex parte orders dated 13th October 2021 (dismissing the suit for want of prosecution) are set aside
2.The suit is reinstated and to be fixed for the main hearing
3.The Plaintiff to fix the suit for hearing within 30 days, failing which the suit stands dismissed
4.Each party to bear their own costs

Authorities

Legislation

Civil Procedure ActSection 3A
Civil Procedure RulesOrder 51 rule 15
Civil Procedure RulesOrder 21 [1]

Cases cited (8)

Sammy Maina vs Stephen Muriuki
Patel vs E.A Cargo Handling Services Ltd
(1974) EA 75
Elosy Murugi Nyaga vs Tharaka Nithi County Government and Another
CMC Holdings Limited v Nzioki
[2004] 1 KLR 173
Ivita vs. Kyumbu
(1984) KLR 441
Shah v Mbogo and Another
[1967] EA 116
Wachira Karani v Bildad Wachira
[2016] eKLR
Richard Nchapai Leiyangu vs IEBC & 2 others
(2016) eKLR

Jurisdiction invoked: Section 3A of the Civil Procedure Act (inherent powers) and Order 51 rule 15 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Jonathan Mbaya Mketta & 2 others v Witu Nyangoro Ranch (DA) Co. Ltd & 3 others [2022] KEELC 769 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/769/eng@2022-03-16

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