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ELCDismissedJudicial Review 20 of 2022· [2022] KEELC 13460 (KLR)

Republic v Deputy County Commissioner, Baringo North & 6 others; Boit (Interested Party); Cheptoo (Exparte Applicant)

Environment and Land Court
13 October 2022
LWL. N. Waithaka
858 words in judgment
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The bottom line

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A Kenyan court refused to revive a land case dismissed after a missed virtual hearing, because the lawyer offered no proof of a technical glitch and delayed too long.

What this practically means

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Executive summary

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This ruling by L. N. Waithaka, J of the Environment and Land Court at Iten determined a notice of motion dated April 12, 2022 by the ex parte applicant, Stephen Kiprop Cheptoo, seeking to set aside an order of January 26, 2022 dismissing his judicial review application dated November 18, 2021 (for certiorari and prohibition concerning Plot Number 260 Kapkiamo Adjudication Section) for non-attendance, and to reinstate it. The applicant explained that his counsel, Edwin Kibet Mwaita, was present virtually but a technical hitch with his mobile gadget prevented communication with the court, and that no prejudice would be suffered by the respondents or the interested party. The interested party, William Argut Boit, opposed, arguing counsel lacked diligence, the main case had no chance of success, and the application was an abuse of process. The respondents did not participate. The court held that while a proven technical hitch could justify setting aside dismissal, counsel adduced no evidence proving attendance or the hitch, and the 2 ½ month delay in filing was inordinate and inexcusable, compounded by prior conduct that had led to dismissal of the main suit. The motion was dismissed with costs to the interested party only, the respondents having not defended it.

Key legal issues

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01

Whether the technical hitch relied on justified setting aside the dismissal

Holding

Not established; no evidence of attendance or of the technical hitch was presented

Reasoning

The court accepted that a proven technical hitch preventing virtual attendance could be good reason to set aside dismissal, but the applicant's counsel, despite deposing he was admitted to the session, adduced no evidence proving attendance or the gadget failure. Mere assertion was insufficient to satisfy the court on the exercise of discretion.

p. 2
02

Whether the delay in filing the setting-aside application was excusable

Holding

The 2 ½ month delay was inordinate and inexcusable, and together with prior conduct leading to dismissal of the main suit, disentitled the applicant to the discretionary relief

Reasoning

The application was filed about 2 ½ months after the dismissal without explanation. The court weighed this unexplained delay against the applicant's earlier conduct that had caused the main suit's dismissal for want of prosecution, and concluded the discretion should not be exercised in his favour.

p. 3

Legal principles established

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  • A party seeking to set aside a dismissal for non-attendance must prove the reason for absence and explain any delay in moving the court

Court orders

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  1. 1.The notice of motion dated April 12, 2022 is dismissed with costs to the Interested Party
  2. 2.No costs awarded to the respondents as they did not defend the application

Authorities

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Legislation

  • Land Adjudication ActCap 284
Jurisdiction invoked
Judicial review jurisdiction under the Land Adjudication Act (Cap 284); formerly Eldoret ELC Judicial Review Cause No. 9 of 2020

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, "Republic v Deputy County Commissioner, Baringo North & 6 others; Boit (Interested Party); Cheptoo (Exparte Applicant)", Case Analysis (2022). Judicial Review 20 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13460/eng@2022-10-13

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