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ELCAllowedEnvironment & Land Case 101 of 2018· [2022] KEELC 14681 (KLR)
Mbogo v Obago & 3 others
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#By Notice of Motion dated October 28, 2020, the plaintiff sought to set aside the court's orders dismissing his suit for non-attendance and/or want of prosecution, and to reinstate the originating suit dated August 29, 2017. He explained that his previous advocate informed him the matter was listed for hearing on October 7, 2020; he attended court on that date only to discover the suit had been dismissed earlier, on a date of which neither he nor his advocate had been notified. The 1st and 2nd defendants opposed, contending the plaintiff had taken no steps to prosecute the suit since 2018 and that the dismissal was lawful, urging that the plaintiff should have been vigilant. The application was disposed of by written submissions; only the respondents filed submissions, but the court proceeded on the record. Framing a sole issue - whether the plaintiff had made out a case for setting aside the dismissal of February 6, 2020 (erroneously cited in the application as September 6, 2020) - the court applied Mbogo v Shah and Phillip Chemwolo v Augustine Kubende on the judicious exercise of the discretion to set aside ex-parte orders. Perusing the record, the court found the EMS hearing notice indicated October 16, 2020, not February 6, 2020, so the plaintiff's non-attendance on the dismissal date was excusable and the dismissal itself erroneous. Invoking Article 50 and Article 159 of the Constitution, the court held a party should not be condemned unheard and allowed the application, setting aside the dismissal and all consequential orders, reinstating the suit for hearing on priority basis, with costs of the application in the cause.
Key legal issues
#01
Whether the dismissal of the suit for non-attendance should be set aside
Holding
Yes - the dismissal was erroneous because neither the plaintiff nor his advocate was aware of the February 6, 2020 hearing date, and there was no justification for dismissal for want of prosecution.
Reasoning
The court perused the record and found the EMS hearing notice served on the parties' advocates indicated October 16, 2020, not February 6, 2020. The plaintiff attended on the date he was informed of and only then learned of the dismissal. The February 6, 2020 appearance was therefore erroneous and neither party was aware of it, so dismissing the suit violated the right to be heard.
p. 3
Legal principles established
#- The discretion to set aside dismissal orders is exercised judiciously to avoid injustice from accident, inadvertence or excusable mistake, and there is no straight-jacket formula.
- A party should not be condemned unheard; the right to be heard before an adverse decision is fundamental and permeates the entire justice system.
Court orders
#- 1.An Order setting aside the dismissal orders of February 6, 2020 dismissing the Plaintiff's suit for non-attendance and/or want of prosecution and all consequential orders ensuing therefrom
- 2.An Order reinstating the plaintiff's suit (O.S) dated August 29, 2017 for hearing and determination on priority basis
- 3.Costs of the Application in the cause
- Jurisdiction invoked
- Inherent discretion to set aside ex-parte orders under Order 12 of the Civil Procedure Rules, Article 159(2)(b) and Article 50 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbogo v Obago & 3 others", Case Analysis (2022). Environment & Land Case 101 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14681/eng@2022-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.