Kabaya & another v Gaitho & another
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dismissal of the suit for non-attendance should be set aside under Order 12 Rule 7
Dismissal not set aside; plaintiffs failed to show accident, inadvertence or excusable mistake
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.
Whether the delay in filing the reinstatement application was excusable
Delay not sufficiently explained; attributed to misinformation by Charles Kimbeja but rejected
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
#- 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
#- 1.The Notice of Motion dated 16th October 2020 is dismissed with costs to the Defendants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.