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ELCAllowedNot stated in the judgment (arising from Originating Summons dated February 17, 2022)· [2023] KEELC 955 (KLR)

Chesang v Kurui (Environment & Land Case 2 of 2022) [2023] KEELC 955 (KLR)

Environment and Land Court
21 February 2023
JOJ.M ONYANGO
1,257 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 dismissed case because a technical hitch, not negligence, kept the lawyer away from a virtual hearing.

What this practically means

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Executive summary

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The Applicant filed an Originating Summons dated February 17, 2022 seeking a declaration that the Respondent holds land parcel LR No Koitoror/Tuiyoluk/Block 1(Koitoror)/297 (Soin Farm) in trust for her, together with a Notice of Motion seeking temporary injunctions over that parcel and LR No Cherangany/kondabulet/55, or alternatively an order of status quo. At the inter partes hearing on March 17, 2022, the Applicant's counsel failed to join the virtual platform owing to a technical hitch and, though she rushed to court physically, the application had already been dismissed for want of prosecution. She filed a Notice of Motion dated May 9, 2022 seeking reinstatement. The Respondent opposed, principally contending that the Applicant lacked locus standi as she was not the administrator of the estate of Kibor Kabarak (deceased), and that his rights as registered owner were protected under article 40 of the Constitution. The court framed a single issue: whether the dismissal order of March 17, 2022 should be set aside. Applying the test in Boniface Kamau Njoroge v John Waweru Wanjohi, the court found counsel's non-attendance excusable and not negligent, the reinstatement application prompt, and no demonstrated prejudice to the Respondent. The court set aside the dismissal and reinstated the application of February 17, 2022 for hearing on the merits, with costs in the cause.

Key legal issues

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01

Whether the dismissal of the application dated February 17, 2022 for want of prosecution should be set aside

Holding

Yes. Counsel's failure to attend the virtual session was due to a technical hitch beyond her control, not negligence; the reinstatement application was made promptly and no prejudice to the Respondent was shown.

Reasoning

The court applied the test in Boniface Kamau Njoroge v John Waweru Wanjohi: delay must be prolonged and inexcusable, justice must still be possible, and reinstatement must not prejudice the opposing party. Counsel attempted to attend physically after the technical failure, showing diligence rather than negligence. The Respondent did not demonstrate prejudice. The discretion was accordingly exercised in the Applicant's favour.

p. 3

Legal principles established

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  • The discretion to set aside an order of dismissal for want of prosecution must be exercised judiciously, considering whether the delay is prolonged and inexcusable, whether justice can still be done, and whether reinstatement would prejudice the other party.

Court orders

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  1. 1.The order of dismissal of the application dated February 17, 2022 made on March 17, 2022 is set aside
  2. 2.The application dated February 17, 2022 is reinstated for hearing on the merits
  3. 3.Costs of the application shall be in the cause

Authorities

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Cases cited (5)

  • Noor Mohammed Abdulla v Patel
    (1962) E.A 447
  • Mbaki & others v Macharia & another
    (2005) 2 E.A 206
  • Ongom v Owota
  • Registered Trustees of Archdiocese of Dar es Salaam v The Chairman Bunju Village Government & others
    Civil Appeal No 147 of 2006
  • Boniface Kamau Njoroge v John Waweru Wanjohi
    [2021] eKLR
Jurisdiction invoked
Inherent discretion of the court to set aside an order of dismissal for want of prosecution

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, "Chesang v Kurui (Environment & Land Case 2 of 2022) [2023] KEELC 955 (KLR)", Case Analysis (2023). Not stated in the judgment (arising from Originating Summons dated February 17, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/955/eng@2023-02-21

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