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ELCDismissedNot stated in judgment· [2022] KEELC 3022 (KLR)

Muriria v Syokimau Farm Limited & another; Mang’eli & another (Interested Parties) (Environment & Land Case 423 of 2012) [2022] KEELC 3022 (KLR)

Environment and Land Court
20 June 2022
2,378 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 suit dismissed for non-attendance, ruling the plaintiff's vague illness excuse could not justify repeated delays.

What this practically means

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Executive summary

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The Plaintiff, Benson Njeru Muriria, moved the Environment and Land Court at Machakos by Notice of Motion dated November 25, 2021, seeking review, variation and setting aside of an order made by Justice Christine A. Ochieng on November 3, 2021 dismissing his suit for want of prosecution and setting down the Defendant's Counterclaim for hearing. He also sought reinstatement of his amended suit dated June 5, 2020, recall of the Defendant's witnesses for cross-examination, referral to case management, and costs in the cause. He attributed his non-attendance to indisposition, communicated to the Defendant's advocate by email on November 2, 2021, and invoked the principle that a litigant should not suffer for his advocate's mistakes. The 2nd Defendant, through his advocate Daniel Njue Kamunde, opposed, showing the hearing date had been fixed by consensus, the Plaintiff had a history of adjournments and indolence, and the suit had once before been dismissed for want of prosecution and reinstated. The court identified the issue as whether the orders of November 3, 2021 should be set aside and the suit reinstated. Applying section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, and the Shah v Mbogo line of authority, the court held that the Plaintiff had not given plausible reasons: the court was never informed of his indisposition, it waited until 12:43pm before dismissing the suit, and the Plaintiff was himself responsible for the prolonged delay. The application was dismissed with costs on June 20, 2022.

Key legal issues

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Whether the dismissal of the Plaintiff's suit for want of prosecution on November 3, 2021 should be set aside and the suit reinstated

Holding

The application was unmerited; the Plaintiff was responsible for the dismissal, the court was never informed of his alleged indisposition, and he had a history of delay and adjournments

Reasoning

The court traced the suit's history: it had previously been dismissed for want of prosecution on July 29, 2019 and reinstated on May 8, 2020, yet the Plaintiff again failed to comply with pre-trial directions and sought repeated adjournments. On November 3, 2021 the hearing date had been fixed by consensus on September 29, 2021; neither the Plaintiff nor counsel attended, and no counsel informed the court of any indisposition. The court waited until 12:43pm before dismissing the suit. The email to the Defendant's advocate was never brought to the court's attention, so the alleged excuse was not plausible.

p. 4
02

The legal framework governing review of court orders

Holding

Review is governed by section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, requiring new and important matter, an error apparent on the face of the record, sufficient reason, and application without unreasonable delay

Reasoning

The court set out the statutory basis for review, quoting section 80 of the Civil Procedure Act and Order 45 rule 1(1) of the Civil Procedure Rules, and applied the established case law that the discretion to set aside exists to prevent injustice from excusable mistake or inadvertence, but not to reward indolence or delay.

p. 3

Legal principles established

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  • A party seeking review must demonstrate sufficient cause; the discretion is exercised to avoid injustice from excusable mistake, not to assist those who delay the course of justice
  • Sufficient cause for non-attendance is a question of fact to be assessed in the circumstances of each case

Court orders

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  1. 1.The Notice of Motion application dated November 25, 2021 is dismissed with costs
Jurisdiction invoked
Sections 1A, 1B, 3A, 63(e), 80 & 95 of the Civil Procedure Act; Order 12 rule 7 and Order 45 rules 1, 2 & 3 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, "Muriria v Syokimau Farm Limited & another; Mang’eli & another (Interested Parties) (Environment & Land Case 423 of 2012) [2022] KEELC 3022 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3022/eng@2022-06-20

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