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ELCAllowedEnvironment & Land Case 42B of 2022· [2023] KEELC 19115 (KLR)
Njogu & 8 others v Thuo Investments Company Limited
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·~6 min to read original · ~4 min briefThe bottom line
#A Kenyan court reinstated a land case dismissed after lawyers missed a hearing date, but ordered the plaintiffs to pay costs and fix a new hearing within 15 days.
What this practically means
#Executive summary
#This ruling by J G Kemei, J of the Environment and Land Court at Thika determined a notice of motion dated May 17, 2023 by the nine plaintiffs seeking reinstatement of their suit, which had been dismissed for want of prosecution on May 16, 2023, and setting aside of the dismissal orders. The applicants explained that their advocate's office misdiarised the May 16, 2023 date as a mention rather than a hearing; the error was attributed to Philip Gakunju Advocate, who held Mr Jaoko's brief on January 23, 2023 and swore a supporting affidavit confirming the mistake. The defendant opposed through the replying affidavit of its advocate, Sharon Njoki Karitu, noting that plaintiffs' counsel had earlier stated he had no witnesses for a hearing on November 25, 2022, and that counsel had access to the online cause list a week in advance, arguing that counsel's inaction bound the plaintiffs as his agents. The court applied the Mbogo v Shah principle that the discretion to set aside dismissal orders exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction. It found the misdiarisation explanation unconvincing, since diligent counsel would have checked the cause list, the registry or the file. However, it held that neither counsel nor plaintiffs deliberately obstructed justice, and no prejudice beyond costs was shown. Purely in the interests of justice, the court allowed the application on terms: throw away costs of Kshs 5,000 to the defendant, and the plaintiffs to fix the suit for hearing within 15 days, failing which it would stand dismissed with no further orders.
Key legal issues
#01
Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated
Holding
The application was allowed purely in the interests of justice, on terms of throw away costs and a fixed timeline for fixing the hearing.
Reasoning
Setting aside dismissal orders is discretionary. Although the explanation of misdiarisation was found unconvincing because diligent counsel would have checked the cause list or the registry, the court found no deliberate obstruction of justice and no prejudice to the defendant beyond what costs could ameliorate. Justice therefore favoured reinstatement on terms.
p. 3
Legal principles established
#- The Court's discretion to set aside a dismissal order is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to assist a litigant who deliberately obstructs or delays justice.
- The sufficiency of the explanation for non-attendance sets the flow of the Court's discretion in favour of the applicant.
Court orders
#- 1.Payment of throw away costs in favour of the Respondent in the sum of Kshs 5,000/- payable by the Plaintiffs
- 2.The Plaintiffs to fix the matter for hearing within the next 15 days from the date of the ruling, in default the suit shall stand dismissed with no further orders from the Court
- Jurisdiction invoked
- Sections 1A, 3, 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, Articles 22, 159(2) of the Kenya Constitution and the inherent powers of the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njogu & 8 others v Thuo Investments Company Limited", Case Analysis (2023). Environment & Land Case 42B of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19115/eng@2023-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.