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ELCPartially AllowedNot stated in the judgment (application dated 30th September 2021; reinstatement of application dated 21st November 2016)· [2022] KEELC 1350 (KLR)

Emris Investment Limited v Cyrus Shakalagha Kwa Jirongo & 2 others; Nairobi City County & another (Garnishee);County Government of Nairobi(3rd Respondent) [2022] KEELC 1350 (KLR)

High Court of Kenya (Executing Court, Nairobi)
16 February 2022
LMLucy N. Mbugua
662 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court reinstated a garnishee application dismissed after a lawyer's virtual court connection failed, confirming courts will excuse technology hitches.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 30th September 2021 by the Decree Holder seeking reinstatement of its application dated 21st November 2016, which had been dismissed on 28th September 2021 for want of prosecution, and reinstatement of the Garnishee Order Nisi issued on 2nd December 2016 for Kshs. 42,429,742. The applicant explained that its advocate on record had tried to join the virtual court session from 8.45am but only succeeded at 9.25am, by which time the application had been called out and dismissed; submissions had already been filed. The applicant feared that if not reinstated, the 1st Garnishee would release the funds to the 2nd Garnishee, destroying its only chance of recovery from judgment debtors on the verge of bankruptcy. The 1st Garnishee opposed, alleging a five-year delay, denial of any debt or relationship with the judgment debtors, and reliance on the Government Proceedings (Amendment) Act 2015 to argue that attachment of government debts is prohibited; it sought its own removal if reinstated. The applicant relied on Shah v Mbogo and related authorities on the principle that a counsel's mistake should not be visited on the client. Judge Lucy N. Mbugua found she could not verify the connectivity averments but could not ignore technological hitches, gave the applicant the benefit of doubt given the prompt filing, and declined to determine the joinder and execution issues at this stage. The application was allowed with no orders as to costs.

Key legal issues

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01

Whether an application dismissed for want of prosecution after counsel failed to join a virtual court session should be reinstated

Holding

The dismissal was reinstated because the court could not verify the connectivity claims but could not ignore technological hitches, and the reinstatement application was filed promptly

Reasoning

The court found it could not ascertain counsel's averments about logging into the virtual court, but recognised the realities of technology hitches. It balanced this against the applicant's promptness in filing the reinstatement application, extended the benefit of doubt, and allowed reinstatement of both the dismissed application and the garnishee order nisi, refusing to make any substantive findings on the garnishees' propriety of joinder.

p. 2

Legal principles established

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  • Where an advocate's failure to attend a virtual court session is attributable to technological hitches and the resulting application is filed promptly, the benefit of doubt should be given to the applicant so that the mistake of counsel is not visited on the client

Court orders

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  1. 1.The application dated 30.9.2021 is allowed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Government Proceedings (Amendment) Act2015 amendments (as invoked by the 1st Garnishee regarding prohibition of attachment of debts against the Government)

Cases cited (3)

  • Shah v Mbogo
    (1967) EA 116
  • Fatuma Hamisi Mwarasi v Orini Limited & 40 others
    (2020) eKLR
  • Bank of Africa Limited v Put Sarajevo General Engineering & 2 others
    (2018) eKLR
Jurisdiction invoked
Inherent powers of the court over its own execution proceedings (garnishee proceedings); no specific provision stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Emris Investment Limited v Cyrus Shakalagha Kwa Jirongo & 2 others; Nairobi City County & another (Garnishee);County Government of Nairobi(3rd Respondent) [2022] KEELC 1350 (KLR)", Case Analysis (2022). Not stated in the judgment (application dated 30th September 2021; reinstatement of application dated 21st November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1350/eng@2022-02-16

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