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ELCDismissedEnvironment & Land Case 104 of 2018· [2022] KEELC 4873 (KLR)

Big Tree Farm Limited v Rono & 25 others

Environment and Land Court of Kenya
22 September 2022
2,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a dismissed land suit because the company blamed its lawyer but the court records proved otherwise.

What this practically means

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Executive summary

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Big Tree Farm Limited, the plaintiff in a land suit against 26 defendants, applied by Notice of Motion dated May 25, 2022 under Order 12, Rule 7 of the Civil Procedure Rules for review and setting aside of the orders of February 1, 2022 dismissing its suit, and for reinstatement of the suit for priority hearing. It blamed a communication breakdown since 2020 with its former advocates, Messrs Simiyu Wafula & Company, who it said failed to inform it of the hearing date or the dismissal, and urged that an advocate's mistake should not be visited on the client. The 7th, 11th, 21st and 24th Defendants opposed, contending the plaintiff knew of the hearing date, was indolent, had delayed in filing the application, and approached the court with unclean hands for failing to pay costs ordered in 2019 and 2021. Justice Fred Nyagaka applied the Shah v Mbogo discretion and acknowledged the aphorism that an advocate's mistake should not be visited on the client, but found the plaintiff's account untruthful: the record of February 1, 2022 showed the plaintiff's advocate was in contact with the client, having sought an adjournment citing a director's indisposition. The court also questioned why the plaintiff did not instruct new counsel or act in person during the alleged breakdown, and why the second director was not available to testify. Holding that the plaintiff was not interested in prosecuting its case, the court dismissed the application with costs to the respondents.

Key legal issues

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01

Whether the dismissal of the Plaintiff's suit should be set aside under Order 12, Rule 7

Holding

The application was dismissed because the Plaintiff's explanation was untruthful and it showed no diligence or genuine desire to prosecute the case

Reasoning

The court applied the Shah v Mbogo discretion, weighing the Plaintiff's claim of a two-year communication breakdown against the record showing its advocate sought an adjournment on the material date citing a director's indisposition, proving contact existed. The Plaintiff also failed to explain why it did not instruct new counsel or act in person during the alleged breakdown, and why only one director was to testify.

02

Whether the mistake of an advocate should be visited upon the client

Holding

While the general aphorism favours the client, it does not avail a party whose own account is contradictory and who has not demonstrated vigilance

Reasoning

The court acknowledged the aphorism and cited Winnie Kibinge v March Electricals, but held that suits are sustained in the interest of justice only where the party is truthful and diligent. Here the Plaintiff's assertion of no contact with its advocate was contradicted by the advocate's own statement in court on the material date, so the principle could not assist it.

p. 3

Legal principles established

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  • The discretion to set aside ex-parte judgments exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay the course of justice
  • A party alleging loss of contact with its advocates must demonstrate vigilance, such as by writing to the court or counsel to establish the position of the file
  • A court cannot rely on an untruth to set aside its orders; contradictory accounts by a party and its advocate on the material facts undermine the application

Court orders

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  1. 1.The Notice of Motion dated May 25, 2022 is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Constitution of KenyaArticles 25(1), 48, 50 and 159
  • Civil Procedure ActSections 1, 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 12, Rule 7; Order 51, Rule 1
  • Penal CodeSection 129(a)

Cases cited (3)

  • Shah -vs- Mbogo & another
    [1967] EA 116

    Principles governing the court's discretion to set aside ex-parte judgments and orders

  • Winnie Kibinge & 2 others -vs- March Electricals Limited
    Civil Case No. 222 of 2010

    A mistake having been made does not mean a party should suffer denial of a hearing on merit

  • N vs. N
    [1991] KLR 685

    Madan J's admonition against absurd and unbelievable lies told in court

Jurisdiction invoked
Order 12, Rule 7 of the Civil Procedure Rules; Sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act; Article 159(2) of the Constitution

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, "Big Tree Farm Limited v Rono & 25 others", Case Analysis (2022). Environment & Land Case 104 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4873/eng@2022-09-22

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