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ELCDismissedBungoma ELC Case No 51 of 2012· [2022] KEELC 1229 (KLR)

Emily Nasimiyu Buchunju v Alex Wechuli & 2 others [2022] KEELC 1229 (KLR)

Environment and Land Court
23 February 2022
3,820 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reinstate a land case dismissed after the plaintiff ignored a hearing she had been properly notified about, stressing courts won't reward unexplained delays.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Bungoma (Olao J) determines the plaintiff's Notice of Motion seeking to set aside the order of 10th October 2017 dismissing her suit and to have the suit reinstated for hearing. The dismissal followed the withdrawal of her then counsel, Mr Murunga, who served her with a letter dated 29th September 2017 advising of the hearing date and that no adjournment would be entertained; the plaintiff did not attend and the defendants sought and obtained dismissal. Although the application was unopposed, the court considered its probative value and the record. It held the plaintiff was served in chambers on 4th October 2017, about a week before the hearing, and had a fair opportunity to be heard; natural justice does not require a party to be dragged to court. The court found she had not come with clean hands, demonstrated no inadvertence or excusable mistake, and was guilty of laches, waiting some twenty months before instructing new advocates. On review under Order 45 Rule 1, the application was filed after unreasonable delay, with no new and important matter, no error apparent on the record and no other sufficient reason; the hospital letter about her brother was irrelevant. The application was dismissed with no orders as to costs. Ruling dated, signed and delivered on 23rd February 2022 by electronic mail in keeping with COVID-19 protocols.

Key legal issues

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01

Whether the court should set aside the dismissal of the suit for non-attendance

Holding

The application for setting aside was refused; the plaintiff was served with notice of the hearing date about a week in advance and chose not to attend, and the court found she had not come to court with clean hands

Reasoning

The record showed the plaintiff was personally served in her former counsel's chambers on 4th October 2017 with a letter advising of the 10th October 2017 hearing date and that no adjournment would be entertained. Natural justice was satisfied by giving her a fair opportunity to be heard; parties need not be dragged to court. She demonstrated no inadvertence, accident or excusable mistake.

p. 5
02

Whether the dismissal order could be reviewed under Order 45 Rule 1

Holding

Review was refused for unreasonable delay and absence of any ground for review

Reasoning

The plaintiff by her own admission knew of the dismissal within days, yet instructed new advocates only on 24th June 2019, some twenty months later, with no explanation. No new and important matter was discovered; the hospital letter concerning her brother Patrick Wanyama Buchunju was irrelevant as he was neither a party nor her witness.

p. 5
03

Whether counsel's withdrawal from the record was procedurally flawed

Holding

No; the court had formally discharged Mr Murunga and directed service of the hearing notice on the plaintiff, which was done

Reasoning

Order 9 concerns informing other parties of changes of representation. Mr Murunga was discharged by the court on 25th September and 10th October 2017 without objection, and the letter of 29th September 2017 was served on the plaintiff in chambers on 4th October 2017, though she declined to sign. Her complaint of non-service contradicted the record.

p. 4

Legal principles established

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  • The discretion to set aside a judgment or dismissal is intended to prevent injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction of justice
  • A party need not be heard in every litigation; once a reasonable opportunity to be heard is given and not utilized, the party can only be heard on why they did not utilize it
  • The conditions for review under Order 45 Rule 1: new and important matter, error apparent on the face of the record, sufficient reason, and application without unreasonable delay

Court orders

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  1. 1.The Notice of Motion dated 9th December 2019 is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 12 of the Civil Procedure Rules

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, "Emily Nasimiyu Buchunju v Alex Wechuli & 2 others [2022] KEELC 1229 (KLR)", Case Analysis (2022). Bungoma ELC Case No 51 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1229/eng@2022-02-23

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