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ELCAllowedNotice of Motion dated November 11, 2019 in ELC Suit (L.R No. 209/11379)· [2022] KEELC 2504 (KLR)

Jane Wanjiru Wangari & 2 others v Kenya Railways Staff Retirement Benefits Scheme

Environment and Land Court
7 July 2022
SOS. Okong'o
1,529 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land suit, confirming that missed hearings can be fixed by costs rather than ending a case.

What this practically means

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Executive summary

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The plaintiffs, members and officials of Kenya Railway Golf Club, brought an Originating Summons seeking title to L.R No. 209/11379 registered in the defendant's name on grounds including fraud, adverse possession and trust. On June 18, 2019, the suit was dismissed with costs for non-attendance when neither party nor their advocates appeared. The plaintiffs filed a Notice of Motion dated November 11, 2019 seeking reinstatement, contending the hearing date was fixed in their absence and that service of the hearing notice was the defendant's advocates' responsibility, which they failed to discharge. The defendant opposed, averring that it was the plaintiffs' advocate who was present when the date was fixed and directed to serve notice, and that the application was brought after an unexplained delay of over 5 months. The court held that the plaintiffs' version of what transpired was the opposite of what took place, that they offered no explanation for the non-attendance, and that the 5-month delay was inordinate and unexplained. Nevertheless, the court noted the plaintiffs' advocates' faithful attendance on prior occasions and their demonstrated continued interest in prosecuting the suit, and found no prejudice to the defendant that could not be cured by costs. Applying the proportionality principle in Nchapi Leiyagu v I.E.B.C and the equity approach in Philip Chemwolo v Augustine Kubede, the court set aside the dismissal and reinstated the suit for hearing on merit, awarding the defendant costs of the application assessed at Kshs. 20,000/- payable forthwith and before the next hearing date.

Key legal issues

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01

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

Holding

Yes - despite the plaintiffs' unexplained failure to attend and inordinate 5-month delay, the court exercised its discretion in their favour because they showed continued interest in prosecuting the suit and no prejudice to the defendant beyond costs was shown.

Reasoning

The court found that the hearing date was fixed in the presence of the plaintiffs' advocate, who was directed to serve notice, and that the plaintiffs' account was the opposite of what took place. The delay of 5 months was inordinate and unexplained. However, the plaintiffs had attended court faithfully on prior occasions, showed no intent to delay prosecution of the suit, and the defendant showed no prejudice not curable by costs. Weighing these factors, the court found merit in the application and reinstated the suit.

p. 3

Legal principles established

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  • A party's default should not ordinarily shut out a hearing unless there is fraud, intention to overreach, or prejudice that cannot be cured by costs; dismissal for non-attendance is discretionary and must be exercised proportionately.

Court orders

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  1. 1.The orders made on 18th June 2019 dismissing the suit for non-attendance with costs are set aside
  2. 2.The suit is reinstated for hearing on merit
  3. 3.The defendant shall have the costs of the application assessed at Kshs. 20,000/- payable forthwith and in any event before the next hearing date

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (2)

  • Nchapi Leiyagu v I.E.B.C & 2 others
    [2013] eKLR
  • Philip Chemwolo & another v Augustine Kubede
    [1982-88] KAR 1033 at 1040
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules (discretion to set aside dismissal 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, "Jane Wanjiru Wangari & 2 others v Kenya Railways Staff Retirement Benefits Scheme", Case Analysis (2022). Notice of Motion dated November 11, 2019 in ELC Suit (L.R No. 209/11379). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2504/eng@2022-07-07

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