Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (application dated August 29, 2022)· [2023] KEELC 673 (KLR)

John Mutuma M'Ikiara v Isaya M'Kirera M'Kiambati

Environment and Land Court
8 February 2023
1,468 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

#

A Kenyan land court refused to revive a dismissed lawsuit because the plaintiff couldn't explain missing his hearing and delayed two months before asking for another chance.

What this practically means

#

Executive summary

#
This was a ruling on the applicant's (plaintiff's) notice of motion dated August 29, 2022, seeking to stay execution of a decree dated July 27, 2022, to set aside the dismissal of his suit, and to be allowed to defend the respondent's counterclaim. The applicant argued that he attended court on March 17, 2022 but was told to return with his advocate, whom he could not trace as the lawyers in the firm were engaged in another matter; his witnesses were ready to proceed; and setting aside the dismissal would serve the interest of justice. The respondent (1st defendant) opposed, asserting that the plaintiff and his witnesses were absent when the matter was called out twice, that proper hearing and judgment notices had been served, that the plaintiff was a trespasser, and that the suit against the 2nd defendant had abated following that defendant's death on December 19, 2020. The respondent, aged 95 and suffering chronic illness, argued that reopening the suit would occasion grave injustice. The court, applying Order 12 Rules 3 and 7 and Order 24 Rule 4(3) of the Civil Procedure Rules and authorities including Shah v Mbogo, Patel v East Africa Cargo Handling Service Ltd, and CMC Holdings Ltd v James Mumo Nzioki, found no good cause for the non-attendance or non-prosecution. The identity of the allegedly engaged advocate was not shown, no cause list was attached, and the application was filed inordinately late after judgment was delivered in the presence of the plaintiff's advocates. No substantial loss or security for costs was demonstrated for the stay. The application was dismissed with costs.

Key legal issues

#
01

Setting aside dismissal of suit for non-attendance

Holding

The court declined to set aside the dismissal as no good cause was shown for the plaintiff's non-attendance or for the inordinate delay in filing the application

Reasoning

The court found the plaintiff attended court in the morning but never returned when the matter was called at 10.50 am. The advocate allegedly in a virtual hearing was not identified, no cause list was attached, and no witnesses were identified. The judgment was delivered in the presence of the plaintiff's advocates, yet the application came almost two months later, an inordinate and unexplained delay.

p. 3
02

Stay of execution

Holding

Refused because no substantial loss was demonstrated and no security for costs was proposed

Reasoning

The court applied established principles that an applicant for stay must show substantial loss, offer security, and file the application without inordinate delay. The plaintiff failed on all three: no substantial loss was shown, no security was provided, and there was inordinate delay in coming to court.

p. 3
03

Abatement of suit against the 2nd defendant

Holding

The suit against the 2nd defendant abated under Order 24 Rule 4(3) of the Civil Procedure Rules following the death of the 2nd defendant on December 19, 2020

Reasoning

The respondent averred that the 2nd defendant died on December 19, 2020, and the plaintiff failed to substitute the deceased within one year, causing the claim to abate on December 19, 2021. The court took this into account as evidence of the plaintiff's lack of diligence in prosecuting the suit.

p. 2

Legal principles established

#
  • A party seeking to set aside dismissal of a suit must give sufficient reason for non-attendance, acting without negligence or want of bona fides
  • Discretion to set aside exparte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party obstructing justice

Court orders

#
  1. 1.The application dated August 29, 2022 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 12 Rule 3
  • Civil Procedure RulesOrder 24 Rule 4(3)

Cases cited (7)

  • Shah v Mbogo & another
    [1967] EA 118
  • Peter Gitahi Kamaitha v Nyeri Municipal Council
    [2014] eKLR
  • Municipal Council of Meru v National Housing Corporation and 54 others
  • Karatima Garments Ltd v Nyandarua
    [1976] KLR 94
  • Patel v East Africa Cargo Handling Service Ltd
    [1974] EA 75
  • Richard Ncharpi Leiyangu v IEBC & 2 others
    [2014] eKLR
  • CMC Holdings Ltd v James Mumo Nzioki
    [2004] eKLR
Jurisdiction invoked
Order 12 Rule 7 and Order 12 Rule 3 of the Civil Procedure Rules (inherent discretion to set aside dismissal of suit)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Mutuma M'Ikiara v Isaya M'Kirera M'Kiambati", Case Analysis (2023). Not stated in judgment (application dated August 29, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/673/eng@2023-02-08

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