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ELCDismissedEnvironment & Land Case 19 of 2018· [2023] KEELC 18229 (KLR)

Ruto (Suing as Legal Personal Representative of the Estate of Kibiwott Arap Mwolomet - Deceased) v Maina & another

Environment and Land Court of Kenya
20 June 2023
FNFred Nyagaka
4,205 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a dismissed case application because the lawyer's explanation for missing the hearing wasn't truthful.

What this practically means

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Executive summary

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The plaintiff, suing as legal personal representative of the estate of Kibiwott Arap Mwolomet, applied by notice of motion dated 03/10/2022 under Sections 3A and 63(e) of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules for setting aside of the court's order of 27/09/2022 dismissing his application dated 03/07/2022 (which had sought stay of execution of the decree), and for reinstatement of that application. The dismissal arose from non-attendance by the plaintiff's counsel at a virtual hearing on Microsoft Teams. The plaintiff explained that counsel's gadget could not connect between concurrent virtual sessions of the ELC and the High Court at Kitale. The respondents opposed, asserting afterthought, inordinate delay and indolence, and detailing the court's and their counsel's repeated unsuccessful attempts to reach the plaintiff's counsel by phone before dismissal. The court framed three issues: merit of the explanation for non-attendance, delay, and costs. It held the eight-day delay in filing the reinstatement application was not inordinate, citing authorities on what constitutes inordinate delay. However, it found the explanation unmerited: counsel failed to explain why she could not attend the physical open-court session lasting over ninety minutes, did not disclose what High Court matter occupied her, and did not rebut the record of unanswered calls. The court inferred lack of candour, holding that equity will not aid a party who departs from the truth, and declined to exercise its discretion. The application was dismissed with costs to the respondents under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the 8-day delay in moving the court after dismissal was inordinate

Holding

The delay of eight days was not inordinate

Reasoning

The court confined its analysis to the period between dismissal (27/09/2022) and the filing of the instant application (05/10/2022), being eight days. Guided by authorities holding that delays of four days, three months and 50-51 days were not inordinate, and noting there is no fixed rule on what constitutes inordinate delay, the court found the eight-day delay not inordinate.

p. 5
02

Whether the explanation for counsel's non-attendance on 27/09/2022 was merited

Holding

The explanation was unmerited; counsel was not candid

Reasoning

Although the explanation of a gadget failing to connect between virtual platforms was initially plausible, counsel did not explain why she could not attend the physical open-court session which lasted over ninety minutes, during which the court repeatedly directed the respondents' counsel to reach her by phone in vain. She also did not disclose what High Court matter she attended. The court inferred lack of candour.

p. 6
03

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

Holding

Discretion refused because the applicant failed the clean-hands requirement

Reasoning

Reinstatement is discretionary and equitable. A party seeking such relief must come with clean hands and adhere to the truth. Since the supporting affidavit told half-truths about the reason for non-attendance, equity would not aid the applicant, and the discretion could not be exercised in his favour.

p. 7

Legal principles established

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  • There is no hard and fast rule as to what constitutes inordinate delay; delay however small must be explained to the satisfaction of the Court
  • A party seeking discretionary equitable relief must come with clean hands and must not depart from the truth

Court orders

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  1. 1.The application dated 03/10/2022 seeking reinstatement of the application dated 03/07/2022 is dismissed
  2. 2.The Respondents are awarded costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 50

Cases cited (11)

  • Ivita v. Kyumbu
    (1984) KLR

    Test for dismissal for want of prosecution: whether delay is prolonged and inexcusable and whether justice can be done irrespective of delay

  • John Nahashon Mwangi v. Kenya Finance Bank Limited (in Liquidation)
    [2015] eKLR

    Courts should sparingly dismiss suits for want of prosecution as it is a draconian act

  • Associated Warehouse Co. Ltd & Others v. Trust Bank Ltd
    HCCC No. 1266 of 1999 (unreported)

    Dismissal of suits under Order 17 of the Civil Procedure Rules

  • Capt. Philip Ongom v. Catherine Nyero Owotta
    SCCA 14/2001 [2003] KLR

    An advocate's mistake should not be attached to a client unless the client is privy to the error

  • Wanendeya v. Gaboi
    [2002] EA 662

    Disputes ought to be determined on merits; lapses should not necessarily debar a litigant

  • Sangram Singh v. Election Tribunal, Kotech
    AIR 1955 SC 664

    Procedure is grounded on natural justice; men should not be condemned unheard

  • Lucas Chagwony & 6 Others v Stanley Chebiator
    [2019] eKLR

    A delay of 4 days in seeking extension of time was not inordinate

  • Safaricom Limited v Josenga Company Limited & 4 others
    [2021] eKLR

    A delay of three months in moving to reopen a case was not inordinate

  • Veronica Gathoni Mwangi & another v Samuel Kagwi Ngure & Another
    [2016] eKLR

    50 or 51 days of delay in filing an appeal was not inordinate once sufficiently explained

  • Ecobank Ghana Limited vs. Triton Petroleum Co Limited & 5 others
    [2018] eKLR

    Guiding principles for dismissal for want of prosecution: inordinate delay, excuse, and prejudice

  • Cecilia Wanja Waweru -V- Jackson Wainaina Muiruri & another
    (2014) eKLR

    No set rule as to what constitutes inordinate delay; conduct must be viewed from the whole period

Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act, Cap 21; 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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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ruto (Suing as Legal Personal Representative of the Estate of Kibiwott Arap Mwolomet - Deceased) v Maina & another", Case Analysis (2023). Environment & Land Case 19 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18229/eng@2023-06-20

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