Big Tree Farm Limited v Rono & 25 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dismissal of the Plaintiff's suit should be set aside under Order 12, Rule 7
The application was dismissed because the Plaintiff's explanation was untruthful and it showed no diligence or genuine desire to prosecute the case
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.
Whether the mistake of an advocate should be visited upon the client
While the general aphorism favours the client, it does not avail a party whose own account is contradictory and who has not demonstrated vigilance
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated May 25, 2022 is dismissed
- 2.Costs of the application to the Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.