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 & Land Case 397 of 2011· [2023] KEELC 17570 (KLR)

Ngiria v Ouko & 2 others

Environment and Land Court
11 May 2023
LMLucy N. Mbugua
532 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court reinstated a dismissed land case, ruling a client shouldn't pay for their lawyer's mistakes—though it cost them Kshs 20,000.

What this practically means

#

Executive summary

#
The plaintiff's suit was dismissed by judgment on February 21, 2019. His notice of motion dated February 5, 2020 seeking review of that judgment was dismissed on September 28, 2022 for non-compliance with court orders directing filing of a further affidavit and submissions by August 4, 2022. The plaintiff then filed the application dated November 14, 2022 seeking to set aside the September 28, 2022 order, blaming his previous advocates for the non-compliance. The respondents, through a replying affidavit sworn by the 2nd respondent, opposed the application, contending that the plaintiff gave no sufficient reasons and merely made feeble attempts to blame his advocate. Relying on Thathini Development Company Limited v Mombasa Water & Sewerage Company & another [2022] eKLR, the court reaffirmed that the discretion to set aside a dismissal order must be exercised judiciously and that an applicant must sufficiently explain why the application is merited. Finding that the plaintiff's affidavit explained the circumstances of the dismissal, and guided by the requirement of substantial justice under Article 159 of the Constitution, the court declined to visit the mistake of counsel on the plaintiff. The application was allowed, but the plaintiff was condemned to pay throw away costs of Kshs 20,000 to the respondents within 30 days, failing which the orders granted would lapse and the file would stand as closed. The ruling was delivered virtually by Lucy N. Mbugua, J on May 11, 2023.

Key legal issues

#
01

Whether blame on counsel for non-compliance justifies setting aside a dismissal order

Holding

Yes - the mistake of counsel should not be visited on the plaintiff, and the dismissal order was set aside on condition of throw away costs.

Reasoning

The court noted it has discretion to set aside an order for dismissal, to be exercised judiciously. The plaintiff's affidavit explained that his counsel failed to comply with the June 23, 2022 directions to file a further affidavit and submissions by August 4, 2022, leading to dismissal of the review application. Guided by Article 159's requirement of substantial justice, the court declined to punish the plaintiff for his advocate's failure, allowing the application subject to throw away costs of Kshs 20,000 within 30 days, failing which the orders lapse and the file is closed.

p. 2

Legal principles established

#
  • The discretion to set aside an order of dismissal must be exercised judiciously and the applicant must sufficiently explain why the application is merited.
  • The court will not visit the mistake of counsel on a litigant, in furtherance of substantial justice under Article 159 of the Constitution.

Court orders

#
  1. 1.The application dated November 14, 2022 is allowed and the order of September 28, 2022 dismissing the review application is set aside
  2. 2.The applicant is condemned to pay throw away costs of Kshs 20,000 to the respondents within 30 days, failing which the orders shall lapse and the file shall stand as closed
Jurisdiction invoked
Inherent discretion of the court to set aside its own orders; Article 159 of the Constitution (substantial justice)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ngiria v Ouko & 2 others", Case Analysis (2023). Environment & Land Case 397 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17570/eng@2023-05-11

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