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ELCAllowedEnvironment and Land Appeal E002 of 2021· [2022] KEELC 14662 (KLR)

Changawa v Okumu

Environment and Land Court
8 November 2022
2,602 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 land suit dismissed after the plaintiff's lawyer missed a hearing, ruling clients shouldn't suffer for counsel's mistakes.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Machakos against a ruling of the Senior Resident Magistrate (Hon. Jerop Brenda Bartoo) delivered on 10 December 2020 in CMCC No. 122 of 2018, declining to set aside orders of 30 January 2020 dismissing the appellant's land suit for want of prosecution. The appellant, an allottee of unsurveyed Plot No. 219 within Mavoko, had sued the respondent over forceful eviction and interference with beacons; his advocate failed to attend the hearing on 30 January 2020 and the suit was dismissed. The appellant argued that a mistake of counsel should not be visited on an innocent client and that the trial court's discretion was not judiciously exercised. The respondent contended the appellant was indolent, the delay inordinate, and that delay defeats equity. Ochieng J framed two issues: whether the ruling and orders of 10 December 2020 should be set aside, and whether the appeal was merited. Examining the lower court record, the court found both parties had contributed to the delay, the suit had not been dormant for twelve months, and its transfer between courts also caused delay. The respondent had himself been absent from court severally and did not demonstrate substantial risk to fair trial or prejudice. The court held the trial magistrate acted unfairly in dismissing the suit when the plaintiff was present in court, applied Patel v E.A. Cargo Handling Services Ltd and Mwangi S. Kimenyi, and allowed the appeal, setting aside the ruling of 10 December 2020, reinstating the suit, directing each party to bear own costs, and requiring the suit to be fixed for hearing within ninety days failing which it would stand dismissed.

Key legal issues

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01

Whether the trial magistrate properly exercised her discretion in refusing to set aside the dismissal of the suit for want of prosecution

Holding

The trial magistrate's discretion was not judiciously exercised; the dismissal was unfair because the plaintiff was present in court and the delay was neither inordinate nor inexcusable.

Reasoning

The court reviewed the lower court record and found both parties had contributed to delay, the suit was not dormant for twelve months, and it had been transferred between courts. The respondent did not demonstrate substantial risk to fair trial or prejudice. The plaint raised triable issues that parties should be allowed to ventilate, and mistake of counsel cannot be visited on the client.

p. 5
02

Whether the delay in prosecuting the lower court suit was inordinate and inexcusable

Holding

The delay was not inordinate nor inexcusable; the parties had been engaged in interlocutory applications and the respondent himself had been absent from court severally.

Reasoning

The court found the suit had not been dormant for twelve months, both parties had sought adjournments, and the transfer of the suit between courts contributed to delay. The record showed the respondent and his counsel had also been absent severally, contradicting his claim that the appellant alone caused the delay.

Legal principles established

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  • A mistake of counsel should not be visited upon an innocent client, and a suit should not be dismissed for want of prosecution where the plaintiff is present in court though the advocate is absent.
  • The court's discretion to set aside an ex parte judgment is wide and unfettered, its main concern being to do justice to the parties.

Court orders

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  1. 1.The order issued on December 10, 2020 is set aside
  2. 2.Machakos CMCC No. 122 of 2018, James G. Katana vs Isaac Murumba Okumu, is reinstated
  3. 3.The appeal is allowed
  4. 4.Each party to bear their own costs of the Appeal
  5. 5.Machakos CMCC No. 122 of 2018 to be fixed for hearing within ninety (90) days from the date of the judgment, failing which the suit stands dismissed for want of prosecution

Authorities

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Legislation

  • Constitution of KenyaArticle 159(d) and (e)
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 17 rule 2
  • Civil Procedure RulesOrder 11

Cases cited (13)

  • Patel vs E.A. Cargo Handling Services Ltd
    [1974] EA 75

    Wide discretion of the court to set aside ex parte judgment; main concern is to do justice to the parties

  • Mwangi S. Kimenyi v Attorney General & another
    [2014] eKLR

    Test for dismissal for want of prosecution: whether delay is intentional, contumelious, inordinate, inexcusable or causes prejudice

  • Ivita vs Kyumbu
    [1984] KLR 441

    Cited on dismissal of suits for want of prosecution

  • Patriotic Guards Ltd vs James Kipchirchir
    Nairobi Civil Appeal No. 20 of 2016

    Relied on by appellant on setting aside ex parte orders

  • K. Praksh v B.R. Sampath Kumar
    Civil Appeal No. 9047 of 2014

    Relied on by appellant on exercise of discretion

  • MK v W M & another
    [2015] eKLR

    Relied on by appellant

  • Mbaki & others vs Macharia & Another
    (2005) eKLR

    Relied on by appellant

  • Belinda Muras & 6 Others vs Amos Wainaina
    [1978] KLR

    Relied on by appellant

  • Phillip Chemwolo & Another vs Augustine Kubede
    [1982-88] KLR 103

    Relied on by appellant on mistakes of counsel

  • Shah vs Mbogo & Another
    [1967] EA 116

    Relied on by appellant on setting aside ex parte judgment

  • Martha Wangari Karua vs IEBC
    Nyeri Civil Appeal No. 1 of 2017

    Relied on by appellant

  • Lucy Bosire v Kehancha Division Land Dispute Tribunal & 2 others
    [2013] eKLR

    Relied on by appellant

  • John Ongeri Mariara & 2 Others vs Paul Matundura
    Civil Application 301 of 2003 [2004] eKLR

    Relied on by respondent on delay and indolence

On appeal from
Chief Magistrate's Court at Machakos
CMCC No. 122 of 2018
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court ruling under the Civil Procedure Act and Rules (Order 10 rule 11 and Order 17 rule 2 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, "Changawa v Okumu", Case Analysis (2022). Environment and Land Appeal E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14662/eng@2022-11-08

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