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ELCPartially AllowedEnvironment & Land Miscellaneous Case E006 of 2022· [2022] KEELC 12774 (KLR)

Mwongo (suing as the administrator and legal representative of Isaiah Mwongo alias Isaiah Mwongo M'aburu v Mugwika & 2 others

Environment and Land Court
28 September 2022
CYC.K Yano
1,236 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Meru (C.K Yano, J) determined an unopposed notice of motion dated June 3, 2022 seeking to set aside orders of May 17, 2022 dismissing the applicant's application dated February 10, 2022 for non-attendance, and to reinstate that application for hearing. The applicant, an elderly lady of over 85 years suing as administrator of the estate of Isaiah Mwongo, pursued a land matter originally filed in the High Court at Meru as No. 158 of 2010 and transferred to the Tigania Chief Magistrate's Court as No. 76 of 2018, where confusion over a misplaced file and a skeleton file had led to earlier dismissals. On May 17, 2022, neither party attended when the February 10, 2022 application was called out, and it was dismissed. Her advocate explained that she could not join the court's virtual link, texted the court assistant, and travelled from Tigania to open court, arriving about 9.40 am after the matter had been dismissed. The respondents were served but filed no replies and did not attend. Applying Order 12 rules 3 and 7 of the Civil Procedure Rules and the principles in Shah v Mbogo (1967) EA 116, the court found the non-attendance sufficiently explained and excusable, the application filed timeously (about three weeks after dismissal), and no prejudice to the respondents. The court set aside the dismissal, reinstated the February 10, 2022 application for hearing on merit, but declined to grant its substantive prayers at that stage, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the dismissal for non-attendance should be set aside

Holding

Yes - the applicant's failure to attend was sufficiently explained and excusable, the application was filed timeously, and no prejudice to the respondents was shown

Reasoning

Order 12 rule 3 permits dismissal for non-attendance and rule 7 allows setting aside. Counsel explained she could not join the virtual link and travelled from Tigania, arriving after dismissal. The application was filed about three weeks after dismissal, which the court found timeous. The respondents, though served, did not oppose, and no prejudice was demonstrated. The failure was neither intentional nor deliberate.

02

Whether the substantive prayers in the dismissed application could be granted on reinstatement

Holding

No - the dismissed application must first be heard on merit before its substantive reliefs can be considered

Reasoning

The court held that the proper course was to reinstate the February 10, 2022 application and hear it on merit; granting its substantive prayers at the reinstatement stage would bypass the hearing process.

p. 3

Legal principles established

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  • The court's discretion to set aside ex parte orders exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay

Court orders

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  1. 1.The order made on May 17, 2022 dismissing the application dated February 10, 2022 is set aside
  2. 2.The application dated February 10, 2022 is reinstated for hearing on merit on a date to be given by the court
  3. 3.Each party to bear his/her own costs

Authorities

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Legislation

  • Civil Procedure Actsection 3
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(e)
  • Civil Procedure RulesOrder 50 rule 1
  • Civil Procedure RulesOrder 12 rule 3
  • Civil Procedure RulesOrder 12 rule 7

Cases cited (1)

  • Shah - V- Mbogo
    (1967) EA 116

    Discretion to set aside ex parte orders exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay

Jurisdiction invoked
Sections 3, 3A and 63(e) of the Civil Procedure Act and Order 50 rule 1 of the Civil Procedure Rules

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, "Mwongo (suing as the administrator and legal representative of Isaiah Mwongo alias Isaiah Mwongo M'aburu v Mugwika & 2 others", Case Analysis (2022). Environment & Land Miscellaneous Case E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12774/eng@2022-09-28

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