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ELCDismissedEnvironment & Land Case 902 of 2015· [2023] KEELC 20545 (KLR)

Mokua v Muthigani

Environment and Land Court
5 October 2023
OAO. A. Angote
2,159 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 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 delay, ruling that blaming your lawyer is not enough to get your case back.

What this practically means

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Executive summary

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The plaintiff, Richard Laurel Mokua, moved the Environment and Land Court at Nairobi by Notice of Motion dated 18th April 2023 seeking reinstatement of ELCC 902 of 2015, a 2015 suit for general damages and specific performance of an agreement for sale of two Kajiado/Kisanguli plots, which had been dismissed on 17th March 2022 for want of prosecution after successive non-attendance by the parties. The application, brought under Article 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, was unopposed; the defendant never entered appearance and no submissions were filed. The plaintiff blamed his former advocates, Omenta and Company Advocates, for assuring him the suit was on course, and said he learned of the dismissal only through a second opinion from another advocate. The court framed a single issue: whether there were sufficient reasons to warrant reinstatement. Applying Shah v Mbogo and later Court of Appeal authority, it held the discretion favours relief for accident or excusable mistake, not indolence. Although mistakes of counsel should not be visited on clients, the plaintiff's allegations were mere assertions unsupported by any affidavit from the former advocate, and he showed no tangible steps of his own to follow up the matter, particularly after a notice of change of advocates was filed in January 2020. The court further found the instructing firm, Kamau Nyaga & Co Advocates, was not properly on record, having complied with neither the notice-of-change requirement nor Order 9 Rule 9, since a dismissal for want of prosecution amounts to a judgment (Njue Njagi v Ephantus Njiru). The application was dismissed with costs and the suit stands dismissed.

Key legal issues

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01

Whether sufficient reasons existed to reinstate the suit dismissed for want of prosecution

Holding

No; the plaintiff's allegations against his former advocate were mere assertions unsupported by an affidavit from counsel, and he showed no personal steps to follow up the case

Reasoning

Reinstatement under Order 12 Rule 7 is discretionary and is meant to relieve hardship from accident or excusable mistake, not to aid deliberate obstruction. While mistakes of counsel should not be visited on clients, the applicant must demonstrate tangible follow-up steps. Here the plaintiff offered bare assertions, no affidavit from the former advocate, and a notice of change of advocates had been filed in 2020, showing he was on notice.

p. 4
02

Whether Kamau Nyaga & Co Advocates were properly on record

Holding

No; no notice of change of advocates from Charles Koech & Associates was filed and no leave under Order 9 Rule 9 was sought, so the application was procedurally defective

Reasoning

Because a dismissal for want of prosecution amounts to a judgment, the incoming firm had to seek leave to come on record or file a consent with the outgoing firm, then file a notice of change, before moving the court. Having failed to comply with the mandatory provisions of Order 9 Rule 9, the firm was not properly on record and the application could not stand.

p. 4

Legal principles established

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  • A dismissal for non-attendance or want of prosecution amounts to a judgment in the suit, so a new firm must comply with Order 9 Rule 9 before filing an application to set aside
  • A party seeking reinstatement must show tangible steps taken to follow up the matter, not merely blame the advocate

Court orders

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  1. 1.The application dated 18th April 2023 is dismissed with costs
  2. 2.The suit stands dismissed as ordered on 17th March 2022

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 12 Rule 1
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (8)

  • Shah vs Mbogo & Another
    (1967) EA 116

    Discretion to set aside is for accident, inadvertence or excusable mistake, not to aid deliberate obstruction of justice

  • Patriotic Guards Limited vs James Kipchirchir Sambu
    [2018] eKLR

    Discretion must be exercised judiciously, on legal principles, to do real and substantial justice

  • Savings & Loan Kenya Ltd vs Onyancha Bwomote
    [2014] eKLR

    Affirming that mistakes of counsel should not be visited on clients

  • Philip Chemowolo & Another vs Augustine Kubede
    (1982-88) KAR 103

    Broad equity approach: no error or default that cannot be put right by costs absent fraud

  • Edney Adaka Ismail vs Equity Bank Limited
    [2014] eKLR

    Party must show tangible steps taken in following up the matter, not merely blame the advocate

  • Utalii Transport Co. Ltd and 3 Others vs N.I.C. Bank and Another
    (2014) eKLR

    Primary duty of plaintiffs to take steps to progress their case

  • Ecobank Ghana Limited vs Triton Petroleum Company Limited (in receivership) & Others
    Civil Case No. 24 of 2009 (UR)

    Litigants must be vigilant; justice must be dispensed without delay despite dismissal being draconian

  • Njue Njagi vs Ephantus Njiru & Another
    [2016] eKLR

    Dismissal for non-attendance or want of prosecution amounts to a judgment in the suit

Jurisdiction invoked
Article 159 of the Constitution of Kenya; Sections 1A, 1B and 3A of the Civil Procedure Act, 2010; Order 12 Rule 7 of the Civil Procedure Rules

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, "Mokua v Muthigani", Case Analysis (2023). Environment & Land Case 902 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20545/eng@2023-10-05

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