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ELCPartially Allowed· [2023] KEELC 211 (KLR)

Sketty v Bwana & 10 others (Environment & Land Case 213 of 2019) [2023] KEELC 211 (KLR)

Environment and Land Court (court not expressly named; single judge at Mombasa)
25 January 2023
NMN A Matheka
1,173 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated a lawsuit dismissed after a missed hearing, because the lawyer was never told the date.

What this practically means

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Executive summary

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By an application dated August 31, 2022, brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, 2010, the plaintiff sought review, variation and setting aside of the court's order of May 26, 2022 dismissing his suit, filed on November 29, 2019, for non-attendance, together with reinstatement of the suit for hearing on merits. The applicant argued that the dismissal was occasioned by the non-attendance of his advocate, not by any fault of his own. On March 22, 2022 the matter had been rescheduled to May 26, 2022 with directions that the deputy registrar serve the date on the parties, but by then the plaintiff had changed advocates from M/S Barayan & Associates Advocates to M/s J P Ngoya & Austine Advocates LLP, and the new firm was not served with the mention notice. The applicant and his advocates only learned of the dismissal when they filed a separate application dated August 22, 2022 seeking leave to amend the plaint. The court applied Order 12 rule 7 of the Civil Procedure Rules and the principles in Shah v Mbogo, under which the discretion to set aside a judgment or dismissal exists to avoid injustice from accident, inadvertence or excusable mistake, and is not to assist a party who deliberately obstructs justice. Finding that the applicant had sufficiently shown why he lacked representation on the hearing date, the court allowed the application, set aside the order of May 26, 2022, reinstated the suit for hearing on merit, and made no orders as to costs because the suit was undefended. The judgment was delivered at Mombasa on January 25, 2023 by N A Matheka, Judge.

Key legal issues

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01

Whether non-attendance on May 26, 2022 was deliberate or excusable

Holding

The non-attendance was excusable because the plaintiff's new advocates were not served with the mention date; the applicant sufficiently demonstrated a reasonable excuse

Reasoning

The court observed that when directions for service of the date were issued on March 22, 2022, the plaintiff had already severed ties with the former advocates, M/S Barayan & Associates Advocates, and was represented by M/s J P Ngoya & Austine Advocates LLP. The mention notice was not served on the new firm, explaining the absence. On that basis the court found the excuse credible.

p. 3
02

Whether the court should exercise its discretion to reinstate the dismissed suit

Holding

The court exercised its discretion under Order 12 rule 7 to set aside the dismissal and reinstate the suit for hearing on merits

Reasoning

Relying on Order 12 rule 7 and the principles in Shah v Mbogo, the court held that the discretion to set aside a dismissal exists to avoid injustice from inadvertence or excusable mistake. Since the plaintiff's absence was inadvertent and not intentional, justice demanded that the suit be reinstated for determination on merits rather than left dismissed for a technical non-attendance.

p. 3

Legal principles established

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  • The court's discretion to set aside a judgment or dismissal order is to be exercised judiciously to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a party who has deliberately obstructed or delayed justice
  • The applicant must prove that non-attendance in court was not deliberate but occasioned by reasonable excuse or omission

Court orders

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  1. 1.The order of May 26, 2022 dismissing the suit is set aside
  2. 2.The suit is reinstated for hearing on merit
  3. 3.No orders as to costs, the suit having been undefended

Authorities

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Legislation

  • Civil Procedure Act (Cap 21, Laws of Kenya)Sections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 51
  • Civil Procedure Rules, 2010Order 12 rule 7

Cases cited (3)

  • Kenya National Private Service Workers Union v Security Guards Services Limited
    (2019) eKLR
  • Shah v Mbogo and another
    [1966] EA 166 (also referred to as (1979) EA 116 in the judgment)
  • John Mukuha Mburu v Charles Mwenga Mburu
    (2019) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 51 of the Civil Procedure Rules, 2010; Order 12 rule 7 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, "Sketty v Bwana & 10 others (Environment & Land Case 213 of 2019) [2023] KEELC 211 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/211/eng@2023-01-25

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