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ELCPartially AllowedPetition 8 of 2020· [2022] KEELC 13657 (KLR)

Yasin Abdulrahman (Administrator to the Estate of Adalamin Abdala alias Abdala Amin Abdala alias Abdulrahman Bin Abdulla alias Abdaraham Abdara – Deceased) v Suan Holdings Limited & 5 others

Environment and Land Court
19 October 2022
2,354 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 rights petition, ruling that a lawyer's sickness is valid reason to revive a case.

What this practically means

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Executive summary

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This is a ruling by C.K. Nzili, J of the Environment and Land Court at Meru on the petitioner's notice of motion dated May 25, 2022 seeking to vacate the court's orders of March 16, 2020 dismissing his constitutional petition for non-attendance and non-compliance, and to reinstate it for hearing on merits. The petitioner, administrator of the estate of the deceased, alleged breach of constitutional rights to land. Counsel attributed non-attendance to sickness, supported by medical reports showing bed rest, and explained non-compliance with site-visit directions as beyond his control because the land registrar and county surveyor were unavailable. The 1st respondent opposed, arguing no reason was shown, that dismissal was justified under Orders 12 and 17 of the Civil Procedure Rules, and that reinstatement would prolong the case. The court held that the Mutunga Rules are silent on dismissal of constitutional petitions for non-prosecution, and that the court retains inherent powers under Rule 25 to set aside its own orders to do justice, guided by the principles in Shah v Mbogo, Belinda Murai v Amos Wainaina and Philip Chemwolo. Finding the explanations credible, the application timeous, no doubt cast on the medical reports, and no prejudice demonstrated by the 1st respondent, the court allowed reinstatement on a priority basis. However, it refused the prayer for fresh scene-visit directions, holding the earlier consent order lapsed with the dismissal and that the court should not aid parties in collecting evidence. Costs were awarded to the 1st respondent in any event.

Key legal issues

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01

Sufficient cause for setting aside dismissal for non-attendance and non-compliance

Holding

The explanations (counsel's sickness and non-availability of officers for the site visit) amounted to sufficient cause; the application was timeous and no prejudice was shown

Reasoning

The court applied the principles in Shah v Mbogo and Philip Chemwolo: discretion exists to avoid injustice from inadvertence or mistake, not to assist deliberate obstruction. The 1st respondent did not cast doubt on the medical reports, showed no specific prejudice, and the subject land's status had not changed. The petitioner's record showed no attempt to steal a match or delay.

02

Applicable procedural regime for reinstating a dismissed constitutional petition

Holding

The Mutunga Rules govern constitutional petitions and are silent on dismissal for non-prosecution; the court's inherent power under the Rules to do justice permits reinstatement

Reasoning

Rule 25 empowers the court to set aside, vary or discharge orders; Rules 3(3), 3(5) and 3(6) impose the overriding objective and a duty on parties to comply with directives. The court invoked its inherent jurisdiction, by analogy with election petition jurisprudence (Richard Leiyagu), to set aside its own dismissal order in the interests of justice.

p. 4
03

Court's role in assisting parties to collect evidence

Holding

The court will not issue fresh site-visit directions absent a fresh consent, since the earlier consent order lapsed with the dismissal

Reasoning

The original site-visit direction was a consent order. Once the petition was dismissed, that consent order fell away. The court held it is not its function to aid parties in gathering facts and evidence, and refused the prayer for fresh scene-visit directions unless the parties executed a new consent.

p. 5

Legal principles established

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  • The Mutunga Rules are silent on dismissal of a constitutional petition for non-prosecution or non-attendance, but the court retains inherent powers to set aside its own orders to do justice
  • Constitutional petitions carry higher considerations than Orders 12 and 17 of the Civil Procedure Rules; formalities are to be kept to a minimum under article 22(3)(b)
  • Sickness of counsel constitutes sufficient cause for non-attendance where not doubted and the application is made timeously without prejudice to the other side

Court orders

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  1. 1.The notice of motion dated May 25, 2022 is allowed
  2. 2.The orders of March 16, 2020 dismissing the petition are vacated and the petition is reinstated for hearing on a priority basis
  3. 3.Costs to the 1st respondent in any event
Jurisdiction invoked
Articles 22, 23, 165 and 259(1) of the Constitution; section 13 of the ELC Act; Constitution of Kenya (Fundamental Rights and Freedoms) Practice and Procedure Rules 2013; Order 12 rule 7 and Order 17 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, "Yasin Abdulrahman (Administrator to the Estate of Adalamin Abdala alias Abdala Amin Abdala alias Abdulrahman Bin Abdulla alias Abdaraham Abdara – Deceased) v Suan Holdings Limited & 5 others", Case Analysis (2022). Petition 8 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13657/eng@2022-10-19

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