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ELCAllowed· [2022] KEELC 3686 (KLR)

Museni & another v Salim & 5 others (Environment & Land Case 287 of 2016) [2022] KEELC 3686 (KLR)

Environment and Land Court
27 July 2022
1,292 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Mombasa reinstated a land suit dismissed when the plaintiff's lawyer missed court, ruling an honest mistake shouldn't punish the landowner.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 28th November 2018 by the Plaintiffs seeking to set aside an order of the same date dismissing their suit for non-attendance, and to reinstate the suit filed by Plaint dated 7th October 2016 concerning Plot Numbers Kwale/Pungu Fuel Area/164, /165 and /STI. The application was brought under Article 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules 2010. The Plaintiffs explained that their advocate sent a representative who mistakenly believed the matter was still before Justice Yano, who was on leave, only to find it had been called out and dismissed before Lady Justice Matheka; the advocate had promptly sought reinstatement but was directed to file a formal application. The Respondents, though served, filed no response. The court applied Order 12 Rule 7 and the established discretion as articulated in Shah vs Mbogo and the sufficient-cause test in Parimal vs Veena as adopted in Wachira Karani vs Bildad Wachira, holding that the discretion must be exercised judiciously to avoid injustice from excusable mistake and that sufficient cause is a question of fact aimed at substantial justice. The court found the Plaintiffs' non-attendance to be an honest, excusable mistake of their advocate which should not be visited upon innocent litigants, and observed that the Respondents would suffer no prejudice that could not be cured by costs. The court allowed the application, set aside the dismissal of 28th November 2018, reinstated the Plaintiffs' suit, and ordered that costs of the application be in the cause. Delivered at Mombasa on 27th July 2022 by N.A. Matheka, Judge.

Key legal issues

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Whether the Plaintiffs demonstrated sufficient cause to warrant setting aside the dismissal of their suit for non-attendance

Holding

Yes. The non-attendance was an honest, excusable mistake by the Plaintiff's advocate's representative; the mistake of counsel should not be visited upon innocent litigants, and this being a land matter, the Plaintiffs were entitled to another chance to be heard.

Reasoning

The court applied Order 12 Rule 7 and the wide, judiciously-exercisable discretion governing setting aside dismissals. Following Shah vs Mbogo and the sufficient-cause test in Parimal vs Veena as adopted in Wachira Karani, it found the representative's confusion over which judge was handling the matter, and the prompt efforts to recall the matter, showed no negligence or want of bona fides. Substantial justice favoured reinstatement, and the respondents, who filed no opposition, would suffer no prejudice.

p. 3

Legal principles established

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  • The discretion to set aside a dismissal for non-attendance must be exercised judiciously to avoid injustice arising from excusable mistake, not to assist a party who deliberately obstructs or delays the cause of justice.
  • Sufficient cause means a party has not acted negligently, inactively or without bona fides, and is a question of fact to be judged on the circumstances of each case with the object of doing substantial justice.

Court orders

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  1. 1.That the Court sets aside the orders of this Honourable Court issued on the 28th November 2018, dismissing the Plaintiff/Applicants' suit.
  2. 2.That the Plaintiff/Applicants' suit instituted via Plaint dated 7th October 2016 and filed on 10th of October 2016 is reinstated.
  3. 3.That the costs of this Application be in the cause.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rule 1

Cases cited (4)

  • Shah vs Mbogo
    (1979) EA 116
  • John Mukuha Mburu vs Charles Mwenga Mburu
    [2019] eKLR
  • Parimal vs Veena
  • Wachira Karani vs Bildad Wachira
    (2016) eKLR
Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules 2010

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, "Museni & another v Salim & 5 others (Environment & Land Case 287 of 2016) [2022] KEELC 3686 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3686/eng@2022-07-27

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