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ELCDismissedEnvironment & Land Case 89 of 2014· [2023] KEELC 19292 (KLR)

Kabaya & another v Gaitho & another

Environment and Land Court
21 August 2023
1,611 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 refused to revive a land suit dismissed for non-attendance, ruling the plaintiffs' eight-month delay was inexcusable.

What this practically means

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Executive summary

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This ruling by M.A. Odeny, J of the Environment and Land Court at Malindi determined a Notice of Motion dated 16th October 2020 by the plaintiffs seeking review, setting aside and/or variation of the order of 18th February 2020 dismissing their suit for non-attendance, reinstatement of the suit, and a stay of taxation of the defendants' Bill of Costs. The plaintiffs' counsel, Mr. Kiarie, deposed that on 5th December 2019 he was summoned before the Deputy Registrar, Supreme Court, and instructed the firm of Kilonzo and Aziz to hold his brief and seek an adjournment; he claimed he only learned of the dismissal date upon receiving the defendants' response. The defendants opposed, contending the delay was unexplained, the court had become functus officio, and the application was an abuse of process. The court applied Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules and the Shah v Mbogo principles. It found that an advocate appearing as Mr. Nyongesa had held brief on 5th December 2019 and obtained a consent adjournment to 18th February 2020, and that Mr. Kiarie was obligated to follow up on the outcome. His failure to attend was not attributable to accident, inadvertence or excusable mistake, and the delay in filing the application was unexplained. The motion was dismissed with costs to the defendants, rendering the stay of taxation unsustainable.

Key legal issues

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01

Whether the dismissal of the suit for non-attendance should be set aside under Order 12 Rule 7

Holding

Dismissal not set aside; plaintiffs failed to show accident, inadvertence or excusable mistake

Reasoning

The court found Mr. Kiarie had instructed an advocate to hold his brief on 5th December 2019, when a consent hearing date of 18th February 2020 was taken. He was obligated to follow up on the outcome. His claim that he did not instruct Mr. Nyongesa did not hold water, and the delay in filing the application was unexplained.

p. 4
02

Whether the delay in filing the reinstatement application was excusable

Holding

Delay not sufficiently explained; attributed to misinformation by Charles Kimbeja but rejected

Reasoning

Counsel argued the delay was due to misinformation from Charles Kimbeja, but the court held the plaintiff and his counsel went on a deep slumber and woke up too late, finding the delay inordinate and unexplained.

Legal principles established

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  • The power to set aside ex parte orders is discretionary and is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay the cause of justice
  • An advocate who instructs another to hold his brief is obligated to find out what transpired in court on that date

Court orders

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  1. 1.The Notice of Motion dated 16th October 2020 is dismissed with costs to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 15

Cases cited (5)

  • Esther Wamaitha Njihia and 2 others v Safaricom Limited
    [2014] eKLR

    Mistake of advocate should not be visited upon an innocent litigant

  • Agricultural Finance Corporation v George Ochieng Ojwando and 6 others
    [2018] eKLR

    Excusable delay in filing reinstatement application

  • Shah v Mbogo and Another
    [1967] E.A 116

    Discretion to set aside ex parte judgment to avoid injustice, not to assist deliberate obstruction

  • Joseph Ndirangu Munene v Peter Macharia Muriu & another
    [2021] eKLR

    Order 12 Rule 7 power to set aside; discretion to be exercised to do justice

  • Patel v E.A Cargo Handling Services Ltd
    (1974) EA 75

    No limits on judge's discretion to set aside ex parte judgment except terms as may be just

Jurisdiction invoked
Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules (review/setting aside of ex parte dismissal)

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, "Kabaya & another v Gaitho & another", Case Analysis (2023). Environment & Land Case 89 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19292/eng@2023-08-21

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