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Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Case 15 of 2019· [2023] KEELC 20449 (KLR)

Kenya African National Union v Inspector General Of Police & another

Environment and Land Court
3 October 2023
1,678 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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KANU's nine-year-old land suit stayed dismissed because it gave no credible reason for missing the hearing date.

What this practically means

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Executive summary

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The plaintiff, Kenya African National Union, filed suit in April 2014 in the High Court at Kakamega, later transferred to the Environment and Land Court at Kakamega. After several adjournments, including a 'very last adjournment' on 17th February 2022 with conditions that the plaintiff pay court adjournment fees and the defendants' witness costs of KShs 21,000, the suit was listed for hearing on 8th December 2022. Neither party attended, and the court dismissed the suit for non-attendance with no order on costs. The plaintiff filed Notice of Motion dated 19th December 2022 seeking setting aside of the dismissal, supported by an affidavit of Jonathan Weche Chacha, its Kakamega branch chairman, who attributed his absence to a bus being detained at a roadblock while returning from Kapsabet. The defendants, through Senior State Counsel Gilbert C Tarus, opposed, contending the excuses were false, that Chacha's authority was unproven, and that the plaintiff had a duty to progress its nine-year-old case. Applying the Mbogoh v Shah principles as restated in James Kanyiita Nderitu, Ohungo J held that the plaintiff, aware of the hearing date and its vulnerable position, gave no valid reason for non-attendance, showed no inadvertence or excusable mistake, and had not paid the imposed costs. The court found the plaintiff had sought to mislead it and dismissed the application with costs to the defendants.

Key legal issues

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01

Discretion to set aside dismissal for non-attendance

Holding

Application dismissed; no valid reason or excusable mistake established

Reasoning

The court applied the Mbogoh v Shah principles as restated in Kanyiita Nderitu: reason for absence, delay, prejudice and interest of justice. The plaintiff knew the hearing date, had been granted last adjournments, failed to pay imposed adjournment fees and witness costs, and its counsel gave no explanation or affidavit. The chairman's travel excuse was uncorroborated and the claim of contacting defence counsel was denied.

p. 3

Legal principles established

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  • Setting aside a dismissal for non-attendance is discretionary, considering reason for absence, time elapsed, prejudice and the interest of justice; discretion is not available to a party who deliberately obstructs or delays justice

Court orders

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  1. 1.Notice of Motion dated 19th December 2022 dismissed
  2. 2.Costs of the application awarded to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 rule 7

Cases cited (4)

  • CMC Holdings Limited v Nzioki
    [2004] 1 KLR 173

    Mistake or error by a litigant should not cause it to suffer injustice

  • Utalii Transport Company Limited & 3 others v Nic Bank Limited & another
    [2014] eKLR

    It is the plaintiff's duty to take steps to progress the case

  • Mbogoh & Another v. Shah
    [1968] EA 93

    Principles governing exercise of discretion to set aside dismissal for non-attendance

  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR

    Restatement of the Mbogoh v Shah discretion principles

Jurisdiction invoked
Inherent discretion under Order 12 rule 7 of the Civil Procedure Rules to set aside dismissal of a suit for non-attendance

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, "Kenya African National Union v Inspector General Of Police & another", Case Analysis (2023). Environment and Land Case 15 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20449/eng@2023-10-03

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