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ELCPartially AllowedEnvironment & Land Case 183 of 2014· [2022] KEELC 13353 (KLR)

Karani (as a Legal Representative of the Estate of Karani Chepsongol-Deceased) v Cheboiwo

Environment and Land Court
23 September 2022
2,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land suit, ruling that a lawyer's forgotten hearing date should not punish the client.

What this practically means

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Executive summary

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This ruling by S. M. Kibunja, J of the Environment and Land Court at Eldoret determined the plaintiff's notice of motion dated February 7, 2022 seeking review and setting aside of the orders of February 1, 2022 dismissing his suit for non-attendance, and reinstatement of the suit for hearing. The plaintiff, as legal representative of the estate of Karani Chepsongol, explained that his advocate failed to diarize the hearing date, an excusable mistake that should not be visited upon the client. The defendant, in occupation of the suit land since 1965 and claiming title through an adopted 1984 Land Disputes Tribunal award, opposed, arguing seven years of inactivity, an inexcusable failure to attend, and that the suit was statute barred. The court framed two issues: whether a reasonable case for setting aside and reinstatement was made, and costs. Applying order 12 rule 7 of the Civil Procedure Rules and the Yamko Yadpaz, CMC Holdings and Peter Kimundi line of authorities, the court found the explanation plausible, the application filed timeously within six days, and no prejudice to the defendant established. It held the plaintiff had shown sufficient cause. The application was allowed in terms of prayer (2), the dismissal was set aside and the suit reinstated for priority hearing. Unusually, costs of Kshs 20,000/- were awarded against the plaintiff's own counsel on record, whose failure to diarize necessitated the application, payable before the next hearing date.

Key legal issues

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01

Whether the plaintiff made a reasonable case for setting aside the dismissal order of February 1, 2022 and reinstating the suit

Holding

Yes - the non-attendance was an excusable mistake of counsel, the application was filed timeously within six days, and no prejudice to the defendant was established.

Reasoning

The court found the advocate's failure to diarize the hearing date plausible and excusable. The application was filed six days after dismissal, showing readiness to prosecute. The defendant failed to demonstrate how reinstatement would prejudice him despite being in possession. The court held it in both parties' interests that the dispute be heard and determined on merit for posterity.

02

Who bears the costs of the application

Holding

The plaintiff's counsel on record, not the defendant, was condemned to pay costs of Kshs 20,000/-.

Reasoning

Although the defendant would ordinarily have paid costs under section 27 of the Civil Procedure Act, the court held that the application was necessitated by the plaintiff's counsel's failure to diarize the hearing date and notify his client, so the counsel personally bears the defendant's costs of the application.

p. 4

Legal principles established

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  • A court's discretion to set aside dismissal of a suit under order 12 rule 7 must be exercised to do justice and to avoid injustice from excusable mistake, not to assist deliberate obstruction.
  • A mistake of counsel, such as failure to diarize a hearing date, should not be visited upon an innocent client.

Court orders

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  1. 1.The application be and is hereby allowed in terms of prayer (2).
  2. 2.The counsel on record for the plaintiff to pay the defendant's costs in the application assessed at Kshs 20,000/- before the next hearing date.
  3. 3.The suit be fixed for hearing on priority basis.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 50
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 27, 80
  • Civil Procedure Rules, 2010Order 12 rule 7; Order 45 rule 1; Order 51 rule 1

Cases cited (13)

  • Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others
    [2013] eKLR

    Principles of natural justice under article 50 in support of reinstatement

  • Wachira vs Karani
    [2016] eKLR

    Review on account of mistake or error apparent on face of record or sufficient reason

  • CMC Holdings Limited versus Nzioki
    (2004) 1 KLR 173

    Discretion to set aside exists to prevent injustice from excusable mistake; court should not turn its back on such a litigant

  • Kestem Complany Limited v Ndala Shop & 2 others
    (2018) eKLR

    Cited by defendant against reinstatement

  • Plorence Nyabolke Machani v Mongere Amos Ombui
    (2018) eKLR

    Cited by defendant against reinstatement

  • Paul Muraya Kaguri v Simon Mabaria Muchunu
    (2015) eKLR

    Cited by defendant against reinstatement

  • Plorence Nyabolke Machani v Mongere Amos Ombui
    (2014) eKLR

    Cited by defendant against reinstatement

  • Plorence Nyabolke Machani v Mongere Amos Ombui
    (2015) eKLR

    Cited by defendant against reinstatement

  • Yamko Yadpaz Industries Limited versus Kalka Flowers Limited
    Nairobi HCCC No 591 of 2012

    No limits on judge's discretion except that it be exercised justly to do justice

  • Adam Said Jumbe & Merceline Kishaga Buluma v Preston Mwakio Jumbe
    [2017] eKLR

    Approval of Yamko Yadpaz principles on reinstatement discretion

  • Shah versus Mbogo
    (1967) EA 116

    Discretion to set aside intended to avoid injustice from inadvertence or excusable mistake

  • Shabir Din versus Ram Perkash Anand
    (1955) 22 EACA 45

    Same principle on exercise of discretion to set aside

  • Peter Kimundi v Government of Makueni County; Mukaa Trading Company Limited (Interested Party)
    [2019] eKLR

    Failure to diarize is an excusable mistake; counsel's mistake should not be visited on the client

Jurisdiction invoked
Article 159 of the Constitution of Kenya 2010; sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); order 12 rule 7 and order 51 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, "Karani (as a Legal Representative of the Estate of Karani Chepsongol-Deceased) v Cheboiwo", Case Analysis (2022). Environment & Land Case 183 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13353/eng@2022-09-23

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