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ELCPartially AllowedNotice of Motion Application dated 15th December, 2020 (ruling within main suit)· [2022] KEELC 2967 (KLR)

Matolo v Attorney General & another; Maithya (Interested Party) (Environment and Land Miscellaneous Application 193 of 2012) [2022] KEELC 2967 (KLR)

Environment and Land Court (Machakos)
25 May 2022
1,489 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a dismissed Bill of Costs, ruling that an honest mistake by a party's lawyer should not defeat justice.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (Christine Ochieng, J) determined a Notice of Motion dated 15th December 2020 by the Interested Party, Francis Manthi Masika, seeking setting aside of ex parte proceedings of 17th October 2019 and reinstatement of his Bill of Costs dated 20th May 2019 for taxation afresh. The Applicant had been awarded costs following the striking out of the Plaintiff's Chamber Summons dated 27th August 2012 and dismissal of a review application dated 24th March 2014. His Bill of Costs, scheduled for taxation on 21st August 2019 (court on leave) and later 9th October 2019, was dismissed for want of prosecution by Deputy Registrar Bartoo SRM when both parties were absent. The Applicant attributed non-attendance to erroneous diarization for 17th October 2019 (a Sunday), misfiling, his illness and COVID-19. The Plaintiff opposed, arguing lack of sufficient cause under Order 21 Rule 12 and bad faith. The court rectified the date discrepancy under Sections 99 and 100 of the Civil Procedure Act and Article 159(2)(d) of the Constitution, applied Order 12 Rule 7, and followed PMM v JNW and Wachira Karani v Bildad Wachira on substantive justice. It held the non-attendance was an excusable mistake causing no prejudice to the Respondent, allowed the application, reinstated the Bill of Costs for taxation before the Deputy Registrar within 60 days (failing which it stands dismissed), and awarded the Respondent the costs of the Application.

Key legal issues

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01

Whether the dismissal of the Bill of Costs for want of prosecution should be set aside and the Bill reinstated for taxation

Holding

Yes - the non-attendance on 9th October 2019 was an excusable mistake, not deliberate delay, and the Respondent would suffer no prejudice since he would have an opportunity to participate in the fresh taxation.

Reasoning

The court applied Sections 99 and 100 of the Civil Procedure Act and Article 159(2)(d) of the Constitution to rectify the misdescription of the dismissal date, then relied on Order 12 Rule 7 and the decision in PMM v JNW on substantive justice. It noted the Applicant had been awarded costs yet to be taxed, had prosecuted the Bill diligently, and had failed to attend only once. Substantive justice and the absence of prejudice to the Respondent favoured reinstatement, with a 60-day timeline to prevent further delay.

p. 3

Legal principles established

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  • Under Order 12 Rule 7 of the Civil Procedure Rules, 2010, the court may on application set aside or vary a judgment or dismissal upon such terms as may be just.
  • A party should not be penalised for an excusable mistake of counsel; courts exist to serve substantive justice and have discretion to set aside such mistakes where no prejudice results.

Court orders

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  1. 1.The Order dismissing the Bill of Costs dated 20th May, 2019 for want of prosecution is set aside.
  2. 2.The Bill of Costs dated 20th May, 2019 is to be set down for taxation before the Deputy Registrar within 60 days from the date of the ruling, failing which it stands dismissed for want of prosecution.
  3. 3.The Respondents are awarded the costs of the Application.

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 51 Rules 1 & 4
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 21 Rule 12
  • Civil Procedure ActSections 1A, 1B(i) and 3A
  • Civil Procedure ActSections 99 and 100
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (2)

  • PMM v JNW
    [2020] eKLR
  • Wachira Karani vs. Bildad Wachira
    Civil Suit No. 101 of 2011 [2016] eKLR
Jurisdiction invoked
Sections 1A, 1B(i) and 3A of the Civil Procedure Act; Order 8 Rule 3 and Order 51 Rules 1 & 4 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, "Matolo v Attorney General & another; Maithya (Interested Party) (Environment and Land Miscellaneous Application 193 of 2012) [2022] KEELC 2967 (KLR)", Case Analysis (2022). Notice of Motion Application dated 15th December, 2020 (ruling within main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2967/eng@2022-05-25

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