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ELCPartially AllowedEnvironment & Land Case 190 of 2017· [2023] KEELC 19254 (KLR)
Njoroge v Ndichu & 27 others
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#What this practically means
#Executive summary
#This is a ruling by JG Kemei, J of the Environment and Land Court at Thika on a Notice of Motion dated April 26, 2023 by the plaintiff, Regina Njeri Njoroge, seeking to set aside and vary the court's orders of April 25, 2023 dismissing her suit for want of prosecution/non-attendance, and to reinstate the suit. The application was supported by an affidavit of her advocate, Antony Karanja Kang'iri, who deponed that he logged into the virtual court at 8.50am but was disconnected around 8.59am due to a power interruption at his offices, and that the plaintiff was physically at the court precincts awaiting allocation. The respondents, though not filing a replying affidavit, opposed the application, noting it was the second dismissal (the suit having been dismissed in 2019), questioning the plaintiff's diligence, and seeking throw away costs of Kshs 50,000/-. The court framed a single issue: whether the application had merit. It noted the prior 2019 dismissal and weighed its duty to do justice against deterring indolent litigants. Finding unchallenged evidence of a power blackout, no evidence of intent to obstruct justice, and that the respondents were themselves absent when the matter was called out, the court held any prejudice was compensable by costs. It allowed the application in the interest of justice on terms: the suit was reinstated on condition it be set down for hearing within 15 days, failing which it would stand dismissed with no further orders, and the plaintiff was to pay throw away costs of Kshs 20,000/- to the respondents.
Key legal issues
#01
Whether the dismissal of the suit for non-attendance on April 25, 2023 should be set aside and the suit reinstated
Holding
Application allowed; dismissal set aside and suit reinstated on condition that it be set down for hearing within 15 days, failing which it stands dismissed, with throw away costs of Kshs 20,000/- to the Respondents.
Reasoning
Plaintiff's counsel gave unchallenged evidence of a power blackout that disconnected him from the virtual court; no evidence suggested deliberate obstruction. The Respondents were also absent when the matter was called out, and any prejudice they suffer is compensable by costs. The court balanced its duty to do justice against deterring indolent litigants, and reinstated the suit on strict terms.
Legal principles established
#- A suit dismissed twice for want of prosecution may still be reinstated where the non-attendance is explained by an involuntary cause and no prejudice beyond costs is shown, but reinstatement will be on strict terms.
Court orders
#- 1.The orders of April 25, 2023 dismissing the suit were set aside and the suit reinstated
- 2.The Applicant to set down the matter for hearing within 15 days of the date of the ruling, in default the suit shall stand dismissed with no further orders of the Court
- 3.The Plaintiff to pay throw away costs of Kshs 20,000/- in favour of the Respondents
- Jurisdiction invoked
- Inherent discretion of the Environment and Land Court to set aside its own orders and reinstate a dismissed suit in the interest of justice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Ndichu & 27 others", Case Analysis (2023). Environment & Land Case 190 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19254/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.