Julius Kibiwott Tuwei v Reuben Argut & 7 others [2022] KEELC 1126 (KLR)
The bottom line
#A Kenyan landowner lost his chance to revive a dismissed lawsuit because he couldn't prove a good reason for missing his court hearing date.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated sufficient cause under Order 12 Rule 7 to set aside the dismissal of his suit for non-attendance
The application lacked merit. The grounds of illness and lack of transport had already been considered and found wanting on 23/09/2021; the claim that his advocate advised him not to attend was unsupported by any evidence such as telephone records; and the applicant had persistently misled the court, including repeating a falsehood about a Cause List showing the matter listed before the Deputy Registrar.
The court separated facts already considered on 23/09/2021 from new facts. The illness and transport explanations were re-litigation of matters already adjudicated. The new claim that the advocate told the plaintiff not to attend was unproved, and counsel holding brief never indicated this. The plaintiff also had a history of non-attendance without explanation. Lacking credible sufficient cause, the discretionary relief could not issue.
Whether the mistake or laxity of the applicant's advocate excused his non-attendance
No. Not all mistakes of advocates pull litigants out of the mud they drag them into; it is the plaintiff's duty to follow the progress of the case, and both the plaintiff and his advocate demonstrated inexcusable laxity.
Relying on Savings and Loans Ltd v Susan Wanjiru Muritu (Kimaru J) and Utalii Transport Co Ltd v NIC Bank, the court held that a suit belongs to the litigant, who must pursue its prosecution and constantly check with counsel. A case cannot be set aside on the sole ground of an advocate's mistake or failure to attend court.
Legal principles established
#- The discretion to set aside an order dismissing a suit for non-attendance must be exercised judiciously and is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the cause of justice
- A case belongs to the litigant, not the advocate; a litigant has a duty to constantly check with his advocate the progress of his case, and a dismissal will not be set aside on the sole ground of a mistake by counsel
- A court hearing a setting aside application (not a review) cannot reconsider the merits of the same set of facts it already considered when making the order sought to be set aside, otherwise it would be sitting on appeal on its own decision
Court orders
#- 1.The application dated 07/10/2021 is disallowed in its entirety
- 2.The plaintiff shall bear the costs of the application
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Kibiwott Tuwei v Reuben Argut & 7 others [2022] KEELC 1126 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1126/eng@2022-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.