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ELCDismissedEnvironment & Land Case 315 of 2017· [2022] KEELC 2401 (KLR)

Chemweno v Mburu (Environment & Land Case 315 of 2017) [2022] KEELC 2401 (KLR)

Environment and Land Court
18 May 2022
EOE. Obaga
1,287 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Eldoret refused to revive a land suit dismissed three years earlier, warning litigants they must follow up their own cases.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 26th October 2021 by the Plaintiff/Applicant seeking to set aside orders of 22nd January 2019 dismissing his suit for non-attendance. The suit, filed on 19th September 2017, sought nullification of an allotment letter issued to the 1st Respondent and a declaration of acquisition of the suit property by prescription, plus a permanent injunction. The Applicant explained his non-attendance by the incapacity of his previous lawyer, his age and ill health, and lack of notice of the hearing; he learned of the dismissal only when served with a notice to show cause. The 1st Respondent opposed, asserting that all processes were duly served on the Applicant's advocate, that the advocate was not incapacitated and still operates his firm, and that the status of the land had changed. The court framed a single issue: whether the Applicant deserved the exercise of discretion in his favour. It found no evidence of the lawyer's incapacity, noting that the lawyer had continued receiving processes claiming no instructions; that the Applicant had a duty to follow up his case and was in fact in his Rongai hardware when served with the notice to show cause. The court further held that the land was held by the Settlement Fund Trustee until title issued to the 1st Respondent on 16th November 2017, so adverse possession could not lie against it. Relying on authorities on counsel's inaction, the court held the application devoid of merit and dismissed it with costs to the 1st, 2nd and 4th Respondents.

Key legal issues

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01

Whether the Applicant deserved the court's discretion to set aside the dismissal of his suit for non-attendance

Holding

The application was dismissed: no evidence of counsel's incapacity, the Applicant was not candid and had a duty to follow up his case

Reasoning

The dismissal was in January 2019 but the application came three years later. The claim that the erstwhile lawyer was incapacitated was unsupported; the lawyer kept receiving court processes and indicated he had no instructions. The Applicant, said to be sickly in Nakuru, was in fact running a hardware in Rongai when served with notice to show cause. He never followed up on his case.

p. 2
02

Whether the Applicant had an arguable adverse possession claim justifying reinstatement

Holding

No; adverse possession could not run against land held by the SFT before title issued to the 1st Respondent on 16th November 2017

Reasoning

The SFT cancelled Monicah Mugure Kariuki's allotment on 11th January 2017 and reallocated the plot to the 1st Respondent on 25th August 2017, with title issued on 16th November 2017. Before that date the land was government-held and incapable of adverse possession; the Applicant's 13-year user claim therefore failed at the threshold.

p. 3

Legal principles established

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  • Adverse possession cannot run against land held by a government institution such as the Settlement Fund Trustee
  • While a party has a fundamental right to be heard, a party cannot be heard where there is nothing to be heard; a principal bears the consequences of counsel's failure to act

Court orders

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  1. 1.The application to set aside the dismissal order is dismissed with costs to the 1st, 2nd and 4th Respondents

Authorities

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Cases cited (4)

  • Peter Kiplagat Rono -vs- Family Bank Limited
    (2018) eKLR
  • The Council, Jomo Kenyatta University of Agriculture and Technology -vs- Joseph Mutaura Mbeere & 3 others
    (2015) eKLR
  • Rajesh Rughani –vs– Fifty Investment Ltd & another
    (2005) eKLR
  • Bains Construction Co. Ltd –Vs– John Mzare Ogowe
    2011 eKLR
Jurisdiction invoked
Inherent discretion of the court to set aside dismissal orders for non-attendance

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, "Chemweno v Mburu (Environment & Land Case 315 of 2017) [2022] KEELC 2401 (KLR)", Case Analysis (2022). Environment & Land Case 315 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2401/eng@2022-05-18

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