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ELCDismissed· [2022] KEELC 1079 (KLR)

Joseph Bongei & 3 others v Nuclear Investments Limited [2022] KEELC 1079 (KLR)

Environment and Land Court
3 March 2022
OAO. A. Angote
2,421 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to reinstate a 14-year-old land suit, holding that clients—not just lawyers—must actively pursue their cases.

What this practically means

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Executive summary

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The Plaintiffs moved the court by Notice of Motion dated 12th January 2021 seeking review, discharge and vacation of orders of 8th December 2020 dismissing their suit for non-attendance, and reinstatement. The application was supported by affidavits of the 3rd Plaintiff, Carlos Ike Liboi, and their counsel Solomon Wamwayi, who explained non-attendance on grounds of uncertainty over instructions and counsel's engagement in a criminal trial. The Defendant opposed, arguing the suit was a boundary dispute involving alleged trespass onto its parking lot, that the Plaintiffs had shown chronic disinterest - including a prior last chance on 26th May 2015 - and that reinstatement would prejudice its members. The court framed a sole issue: whether there were sufficient reasons to warrant reinstatement. Relying on Order 12 Rule 7 of the Civil Procedure Rules and the Shah vs Mbogo line of authority, the court held that counsel's services not having been expressly terminated, he ought to have attended court, and that involvement in another matter was not a sufficient reason. The 3rd Plaintiff knew the hearing date yet offered no explanation for his absence. The court record revealed a lax attitude since 2008, with repeated absences and adjournments. The court found the overriding objective could not aid the Plaintiffs and dismissed the application with costs, the suit remaining dismissed as ordered on 8th December 2020.

Key legal issues

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01

Whether the Plaintiffs gave sufficient reasons for non-attendance on 8th December 2020

Holding

No. Counsel's uncertainty over instructions did not excuse him since no Notice of Change of Advocates was filed, and being engaged in another matter is insufficient; the Plaintiffs themselves knew the hearing date and did not attend.

Reasoning

Counsel's services had not been expressly terminated and no Notice of Change of Advocates or letter of acting in person had been received, so he should have attended. Being in a criminal trial elsewhere was no excuse since he could have sent a colleague to hold his brief. The 3rd Plaintiff admitted knowing the hearing date yet offered no explanation for non-attendance.

p. 3
02

Whether the Plaintiffs' conduct disentitled them to reinstatement

Holding

Yes. The record showed repeated non-attendance, prior last chance on 26th May 2015, adjournments at Plaintiffs' behest, and a suit filed in 2008 never prosecuted, evidencing laxity inconsistent with the overriding objective.

Reasoning

The court traced the history: notice to show cause in 2015 with a last chance, adjournment at Plaintiffs' behest, numerous mention dates when counsel was absent, and failure to substitute a deceased plaintiff within 45 days. This chronology pointed to a lax attitude, and the overriding objective could not come to their aid despite dismissal being a draconian order.

p. 3

Legal principles established

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  • The court has discretion under Order 12 Rule 7 to set aside or vary a dismissal upon such terms as may be just
  • Discretion to set aside ex parte orders is meant to avoid injustice from accident or excusable mistake, not to aid deliberate obstruction
  • A case belongs to the client, whose primary duty is to progress it; engagement in another court matter is not a sufficient reason for non-attendance

Court orders

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  1. 1.The Notice of Motion dated 12th January 2021 is dismissed with costs
  2. 2.The suit stands dismissed as ordered on 8th December 2020

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 12 Rule 7

Cases cited (9)

  • Wachira Karani vs Bildad Wachira
    [2016] eKLR
  • Esther Wamaitha Njihia & 2 others vs Safaricom Limited
    [2014] eKLR
  • Jim Rodgers Gitonga Njeru vs Al-Husnain Motors Limited & 2 others
    [2018] eKLR
  • Philip Chemwolo & Another vs Augustine Kubende
    1982-83 1 KAR
  • Bilha Ngonyo Isaac vs Kembu Farm & Another
    [2018] eKLR
  • Shah vs Mbogo & Another
    (1967) EA 116
  • Patriotic Guards Limited vs James Kipchirchir Sambu
    [2018] eKLR
  • Utalii Transport Co. Ltd and 3 Others vs N.I.C. Bank and Another
    (2014) eKLR
  • Ecobank Ghana Limited vs Triton Petroleum Company Limited (in receivership) & Others
    Civil Case No. 24 of 2009 (UR)
Jurisdiction invoked
Order 12 Rule 7 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 Bongei & 3 others v Nuclear Investments Limited [2022] KEELC 1079 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1079/eng@2022-03-03

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