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ELCAllowedEnvironment and Land Appeal E027 of 2021· [2023] KEELC 17847 (KLR)

Kamuri v Kihara & another (Suing for and on behalf of Shangilia Baba na Mama Self Help Group)

Environment and Land Court
29 May 2023
ANA. Nyukuri
1,399 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a land case dismissed after a lawyer couldn't join a virtual hearing, confirming technical glitches won't cost you your day in court.

What this practically means

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Executive summary

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This is a ruling by A. Nyukuri J of the Environment and Land Court at Machakos in an appeal arising from the judgment of Hon. C. Ocharo SPM delivered on 3 June 2021 in Machakos Chief Magistrates Civil Suit No. 86 of 2018. The Appellant, Kihuria Kamuri, moved the court by Notice of Motion dated 6 December 2021 seeking reinstatement of his amended Notice of Motion dated 6 September 2021 and setting aside of orders made on 24 November 2021, when the amended application was dismissed for want of prosecution after his counsel failed to log onto the court's virtual platform. The Respondents opposed, arguing the deponent's name discrepancy (Kihuria versus Hikuria Kamuri) made the affidavit a stranger's, and that facts about the link failure were within counsel's knowledge only, rendering the affidavit hearsay. The court framed a sole issue: whether there was good cause to set aside the orders of 24 November 2021. Applying Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules, and authorities on 'sufficient cause', the court held that sufficient cause depends on the circumstances and receives liberal construction to advance substantial justice. It found the Appellant's explanation credible, noted the application was filed within two weeks, and rejected the hearsay objection on the basis that counsel's acts as agent are deemed within the principal's personal knowledge. The court set aside the orders of 24 November 2021, reinstated the amended application for inter partes hearing, and made no order as to costs.

Key legal issues

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01

Whether the dismissal of the Appellant's application for want of prosecution after counsel failed to log onto the virtual platform should be set aside

Holding

Yes; the explanation of technical difficulties with the court's virtual link was credible, the application was filed promptly (two weeks after), and no negligence or bad faith was imputable, so the ex parte orders were set aside.

Reasoning

The court applied Order 12 Rule 7, which permits setting aside a dismissal upon just terms, and Order 51 Rule 15. Sufficient cause has no fixed definition and depends on the circumstances. Counsel explained he could not log into the court's link; the court acknowledged that virtual platform challenges are common. The application was filed within two weeks, showing diligence. The agent-principal reasoning defeated the hearsay objection.

p. 3

Legal principles established

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  • What an agent (counsel) does in conduct of the client's case is deemed within the principal's personal knowledge, so the client's affidavit on such facts is not hearsay.
  • Sufficient cause for setting aside ex parte orders receives a liberal construction to advance substantial justice.

Court orders

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  1. 1.The orders made on November 24, 2021 are set aside
  2. 2.The amended Notice of Motion dated September 6, 2021 is reinstated for inter partes hearing
  3. 3.No order as to costs
On appeal from
Chief Magistrates Court at Machakos
Civil Suit No. 86 of 2018
Jurisdiction invoked
Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules 2010; Articles 159 and 50 of the Constitution; Sections 1A and 1B Civil Procedure Act; Section 3 Environment and Land Court Act

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, "Kamuri v Kihara & another (Suing for and on behalf of Shangilia Baba na Mama Self Help Group)", Case Analysis (2023). Environment and Land Appeal E027 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17847/eng@2023-05-29

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