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ELCAllowedEnvironment & Land Case 314 of 2015· [2022] KEELC 12735 (KLR)

Nyambati & 2 others v Oker & 4 others

Environment and Land Court
30 September 2022
AOAntony Ombwayo
1,936 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a land suit dismissed after the plaintiffs missed a hearing due to a family medical emergency, prioritising a fair hearing over procedural delay.

What this practically means

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Executive summary

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The plaintiffs/applicants moved the Environment and Land Court at Kisumu under Order 10 Rule 1 of the Civil Procedure Rules 2010 and sections 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside the dismissal of their suit on 12th May 2022 for non-attendance at the hearing. They explained that on the eve of the hearing they had met counsel for trial preparation, but on the hearing date the 1st and 2nd plaintiffs had to rush their son to hospital following an accident, annexing a treatment card. The Attorney General filed Grounds of Opposition, invoking Order 17 Rule 3 and contending the plaintiffs gave no timely communication of non-attendance and that the application was frivolous and an abuse of process. The 1st Defendant's replying affidavit asserted the application was misleading, that counsel had sought an adjournment citing a medical emergency despite the son having been injured the previous night, and that equity aids the vigilant, not the indolent, in a suit pending since 2015. The defendants did not file submissions as directed. The court framed a single issue: whether there were sufficient reasons to warrant reinstatement. Relying on Order 12 rule 7 and the principles in Shah v Mbogo (as cited in Kenya National Private Service Workers Union v Security Guards Services Limited), the court held the treatment card demonstrated sufficient reasons and that, given the serious nature of a land dispute, the interests of justice required that the parties be heard. The application was allowed: the orders of 12th May 2022 were set aside, the suit was reinstated, and costs of the application were made costs in the cause.

Key legal issues

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01

Whether sufficient reasons existed to warrant reinstatement of the suit dismissed on 12th May 2022

Holding

Yes - the treatment card demonstrated sufficient reasons; the plaintiffs were willing to prosecute the case and it was in the interests of justice that parties be heard.

Reasoning

The court invoked Order 12 rule 7, which permits setting aside a dismissal on such terms as may be just. Applying Shah v Mbogo, the discretion exists to avoid injustice from accident or inadvertence. The plaintiffs had prepared for trial on 11th May 2022, and the treatment card corroborated the son's accident. Given the serious nature of a land dispute, hearing the parties on merit was in the interests of justice.

p. 4

Legal principles established

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  • The court's discretion to set aside a dismissal is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay.

Court orders

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  1. 1.The orders issued on 12th May 2022 are set aside
  2. 2.The suit is reinstated
  3. 3.Costs of the Application be in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 10 Rule 1
  • Civil Procedure Rules 2010Order 17 Rule 3
  • Civil Procedure Rules 2010Order 12 rule 7
  • Civil Procedure Actsections 1A, 1B and 3A

Cases cited (3)

  • Edney Adaka Ismali vs Equity Bank Limited
    [2014] eKLR

    Non-attendance due to inadvertent, unforeseen circumstances should not deny a party the right to be heard

  • Kenya National Private Service Workers Union v Security Guards Services Limited
    [2019] eKLR

    Court exists to do justice and has unfettered discretion to set aside its judgments upon terms

  • Shah Vs. Mbogo and another
    [1966] EA 166

    Guiding principle on discretion to set aside judgment obtained exparte

Jurisdiction invoked
Order 12 rule 7 of the Civil Procedure Rules 2010; sections 1A, 1B and 3A of the Civil Procedure Act

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, "Nyambati & 2 others v Oker & 4 others", Case Analysis (2022). Environment & Land Case 314 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12735/eng@2022-09-30

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