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ELCDismissedNot stated in the judgment· [2022] KEELC 3460 (KLR)

Mukua & another v Kariuki & 2 others (Environment & Land Case 521 of 2017) [2022] KEELC 3460 (KLR)

Environment and Land Court
28 July 2022
JKJ G Kemei
1,959 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to reinstate a dismissed suit because the plaintiffs blamed their lawyer without providing evidence, showing courts expect litigants to actively pursue their own cases.

What this practically means

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Executive summary

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The plaintiffs sued in 2017 seeking eviction and a permanent injunction against the defendants over land parcel Limuru/Kamirithu/3214, and obtained status quo orders in a ruling dated 9/3/2018. On 10/11/2021 neither the plaintiffs nor their counsel attended the hearing; their counsel cited an unspecified 'emergency' and the adjournment was refused. The defendants obtained dismissal of the suit for want of prosecution and proceeded to ex parte hearing of their counterclaim, with judgment scheduled for 28/7/2022. The plaintiffs then filed an application on 8/12/2021 to set aside the dismissal, which was itself dismissed on 21/4/2022 after repeated non-attendance despite service. By a motion dated 5/7/2022 the plaintiffs sought stay of proceedings, arrest of the scheduled judgment, and reinstatement of the 8/12/2021 application, blaming their former counsel's mistake. The defendants opposed, contending the application was vexatious and that no affidavit from the former counsel evidenced any mistake. The court (J G Kemei, Judge) held that the plaintiffs had not given cogent explanations for non-attendance on three consecutive dates, that no evidence of any specific mistake of counsel had been placed before the court, and that the doctrine that a counsel's mistake should not be visited on a litigant has no blanket application and requires scrutiny of the litigant's own conduct. Following Habo Agencies and Sakiri, the court found the plaintiffs indolent and dismissed the application with costs to the defendants, allowing the judgment on the counterclaim to proceed as scheduled.

Key legal issues

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01

Whether the dismissal of the plaintiffs' suit and subsequent dismissal of their application dated 8/12/2021 for non-attendance should be set aside on the ground of mistake of counsel

Holding

The application was unmerited; the applicants gave no cogent explanation for non-attendance on three consecutive dates and produced no evidence from former counsel of any mistake

Reasoning

The plaintiffs' counsel failed to attend the hearing on 10/11/2021, offered no explanation of the alleged 'emergency', and did not instruct another counsel to hold her brief. The subsequent application dated 8/12/2021 was itself dismissed for non-attendance after three hearings at which neither the plaintiffs nor their counsel appeared despite service. No affidavit from the former counsel was sworn to evidence the alleged mistake. Relying on Habo Agencies and Sakiri, the court found the inaction to be indolence, not excusable mistake, and declined to exercise its discretion.

p. 3
02

Whether stay of further proceedings and arrest of the judgment on the defendants' counterclaim should issue

Holding

Stay was refused because no basis for setting aside the dismissal orders was established

Reasoning

The stay sought was ancillary to the application to set aside the dismissal orders. Having found the setting-aside application unmerited, the court saw no necessity to arrest the judgment scheduled for 28/7/2022. It also noted the plaintiffs had filed no reply to the counterclaim and that their mischaracterisation of the status quo orders as interim injunctions betrayed a lack of diligence.

p. 4

Legal principles established

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  • An alleged mistake of counsel must be demonstrated by evidence in court; mere inaction or indolence of counsel does not constitute an excusable mistake, and a party seeking the exercise of the court's discretion must place material before the court to justify it.
  • The principle that the mistake of counsel should not be visited upon an innocent litigant does not have blanket application; the court will examine the conduct of the party blaming counsel.
  • A suit belongs to the parties and not the advocate; a party must be at the forefront of prosecuting their case.

Court orders

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  1. 1.The applicants' application dated 5/7/2022 is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 51 rule 15
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 2 rule 13
  • Civil Procedure RulesOrder 51 rule 13
  • Distress for Rent Actsection 3(1)
  • Transfer of Property Act 1882section 108(a)
  • Civil Procedure Actsections 63, 1A, 1B, 3A

Cases cited (4)

  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    [2020] eKLR
  • Sakiri v Anyumba
    [2022] KECA 521 (KLR)
  • Daqare Transporters Ltd v Chevron Kenya Limited
    [2020] eKLR
  • Rajesh Rughani v Fifty Investment Ltd & Another
    (2005) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under order 51 rule 1 and order 51 rule 15 Civil Procedure Rules (application to set aside dismissal orders and stay proceedings)

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, "Mukua & another v Kariuki & 2 others (Environment & Land Case 521 of 2017) [2022] KEELC 3460 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3460/eng@2022-07-28

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