Ng’ang’a v Wamiti (Environment & Land Case 11 of 2020) [2022] KEELC 3081 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether there is sufficient cause (excusable non-attendance) to set aside the dismissal of 3 March 2021
Yes - the advocate's sending a support staff member who arrived late and failed to secure counsel to hold brief was an inadvertent and excusable mistake, and the unchallenged affidavit of the advocate vindicated the litigant
The court noted that advocates often send support staff to hold brief arrangements. Arriving late and failing to secure holding counsel was classified as inadvertent and excusable. The supporting affidavit of the applicant's advocate acknowledged the mistake was his, exonerating the litigant; the respondent did not challenge that affidavit, so the court accepted the factual account.
Whether the about nine-month delay in filing the setting-aside application was inordinate and fatal
Although the delay was serious and evidenced indolence by the litigant and her advocate, it was not, in all the circumstances, sufficient to defeat the application
The court found the matter had been in court on several occasions after the dismissal without the applicant raising the issue, showing indolence. However, it held that a litigant should not bear the consequences of an advocate's default, and weighed the overarching interest of justice, especially given the parallel succession cause, in exercising its discretion in the applicant's favour.
Whether the interest of justice favoured reinstatement given the pending Nairobi Succession Cause 1708 of 2005 over the same subject matter
Yes - reinstatement was justified to avoid two courts of equal status pronouncing themselves on the same subject matter
The reinstated application sought a stay pending determination of a succession cause in the High Court involving the same parties and the suit property as part of a deceased's estate. The court reasoned that hearing that application on merit could avoid conflicting pronouncements by courts of coordinate jurisdiction whose roles are defined by Article 165 of the Constitution.
Legal principles established
#- Reinstatement of a suit or application dismissed for want of prosecution or non-attendance is discretionary, governed by order 12 rule 7 of the Civil Procedure Rules, to be exercised on such terms as may be just
- A litigant ought not to bear the consequences of an advocate's default unless privy to it or it results from failure to give due instructions
- A litigant has a duty to pursue prosecution of the case and constantly check on its progress; indolence may disentitle the litigant to the court's discretion
- There is no precise measure of what amounts to inordinate delay; it depends on the circumstances, subject matter and explanation in each case
Court orders
#- 1.The orders made on March 3, 2021 dismissing the application dated February 10, 2021 are set aside and that application is reinstated for hearing on merit
- 2.The Applicant shall pay the respondent throw away costs of Kshs. 20,000/= before the application dated February 10, 2021 is heard
- 3.The applicant is directed to set down her application dated February 10, 2021 forthwith for hearing, failing which the said application will stand dismissed
- Jurisdiction invoked
- Order 12 rule 7 of the Civil Procedure Rules; Article 165 of the Constitution (court status/jurisdiction referred to)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng’ang’a v Wamiti (Environment & Land Case 11 of 2020) [2022] KEELC 3081 (KLR)", Case Analysis (2022). Not stated in the judgment (application dated August 5, 2021 in the substantive suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3081/eng@2022-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.