Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment and Land Civil Miscellaneous Application 72 of 2017 (Formerly Kisumu HCC Misc. App. No. 140 of 2013)· [2022] KEELC 15060 (KLR)

Jacob Evans Jonani v Jairo Gumba Agengo & 2 others

Environment and Land Court of Kenya
24 November 2022
AOA. O Ombwayo
1,485 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court reinstated a land suit dismissed for delay, ruling that a lawyer's illness and death justified the missed hearings.

What this practically means

#

Executive summary

#
The plaintiff, Jacob Evans Jonani, moved the Environment and Land Court at Kisumu by Notice of Motion under sections 1A, 1B and 80(a) of the Civil Procedure Act and Order 45 Rule 1(a) of the Civil Procedure Rules, seeking review of the court's order of May 30, 2018 dismissing his suit for want of prosecution, reinstatement of the suit, priority hearing and costs. He argued that his Advocate had shown cause in response to the Order 17 Rule 2 notice, explaining that the Defendant's Advocate, the late Aloys Obunga Aboge, was ailing, which hampered fixing the suit for hearing, and that the court had not considered that affidavit. The 3rd Defendant opposed, contending that no steps had been taken to prosecute the suit since 2013, that Mr Aboge only began ailing in 2018 and died on July 22, 2018 - after the dismissal - that his firm remained active through an associate, that the key 1st Defendant died on November 14, 2016 causing prejudice, and that the court, having dismissed the suit, was functus officio. Relying on the discretion to set aside judgments to avoid injustice, as articulated in Shah v Mbogo, the court found the plaintiff's Advocate had given sufficient reasons for reinstatement, given the difficulties in fixing the matter after the Defendant's counsel passed on. The court allowed the application, set aside the dismissal order of May 30, 2018, reinstated the suit, directed that it be fixed for hearing on priority basis, and ordered costs of the application to be in the cause.

Key legal issues

#
01

Whether sufficient cause was shown to warrant reinstatement of a suit dismissed for want of prosecution

Holding

The court found sufficient reasons for reinstatement, namely the illness and death of the Defendant's Advocate which hampered fixing the matter for hearing.

Reasoning

The court considered the plaintiff's Advocate's affidavit responding to the show-cause notice, which explained that the delay was occasioned by the illness of the Defendant's Advocate, Mr Aboge, and attempts at out-of-court settlement. The court accepted that after the Defendant's counsel passed on, the plaintiff's Advocate faced genuine challenges in fixing the matter, and concluded these were sufficient reasons to warrant reinstatement.

p. 3

Legal principles established

#
  • The court's discretion to set aside its orders is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed or delayed justice.

Court orders

#
  1. 1.The orders issued on May 30, 2018 are set aside and the suit is reinstated
  2. 2.The matter be fixed for hearing at the registry on priority basis
  3. 3.The costs of the application be in the cause

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 80(a)
  • Civil Procedure RulesOrder 45 Rule 1(a)
  • Civil Procedure RulesOrder 17 Rule 2

Cases cited (2)

  • Kenya National Private Service Workers Union v Security Guards Services Limited
    [2019] eKLR

    Court's unfettered discretion to set aside its judgments to do justice to all parties.

  • Shah v Mbogo and another
    [1966] EA 166

    Guiding principle on discretion to set aside a judgment - to avoid injustice, not to assist deliberate obstruction or delay.

Jurisdiction invoked
Section 1A, 1B, 80(a) of the Civil Procedure Act and Order 45 Rule 1(a) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jacob Evans Jonani v Jairo Gumba Agengo & 2 others", Case Analysis (2022). Environment and Land Civil Miscellaneous Application 72 of 2017 (Formerly Kisumu HCC Misc. App. No. 140 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15060/eng@2022-11-24

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