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Case Brief · caselaw.co.ke
ELCAllowedEnvironment and Land Case Civil Suit 357 of 2015· [2023] KEELC 21261 (KLR)

Virani & another v Kenya Pipeline Company Limited

Environment and Land Court
2 November 2023
1,779 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a land compensation suit dismissed after the plaintiffs' two advocates fell ill and died, ruling a litigant cannot be blamed for an advocate's death.

What this practically means

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Executive summary

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The plaintiffs, registered proprietors of Kisumu/Kogony/2642, sued Kenya Pipeline Company Limited in December 2015 seeking Kshs. 22,400,000/- compensation for damage caused during the laying of a second pipeline, plus damages for trespass. After repeated non-attendance at mentions before the Deputy Registrar from December 2021, the court dismissed the suit for want of prosecution on 7th November 2022 under Order 17 rule 2 of the Civil Procedure Rules, with costs to the defendant. The plaintiffs then moved by Notice of Motion dated 22nd March 2023 to set aside that order and reinstate the suit, explaining that their advocate Gerald Kimanga died on 16th January 2022 and his successor Omboga Makori died on 7th March 2023 after prolonged illness. The defendant opposed, noting prior non-attendances and asserting no evidence of Makori's illness before dismissal. The court held that Order 45 (review) was inapplicable since the dismissal was made ex parte in the plaintiffs' absence; the proper route was Order 51 rule 15. Applying principles from Shah v Mbogo, Patriotic Guards Ltd v Sambu and Richard Nchapi Leiyangu v IEBC, the court found the plaintiffs' regular attendance from 2015 to 2021 showed keenness, held that a party cannot be blamed for an advocate's illness or death, and found no prejudice to the defendant incapable of compensation in costs. The dismissal order was set aside, the suit reinstated for hearing on merit, and the defendant awarded the costs of the application plus thrown away costs of Kshs. 20,000/- payable forthwith.

Key legal issues

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01

Correct procedural route for setting aside dismissal for want of prosecution

Holding

Order 45 (review) was inapplicable; the proper route was Order 51 rule 15, which permits the court to set aside an order made ex parte.

Reasoning

The suit was dismissed under Order 17 rule 2 in the absence of the plaintiffs, who failed to appear and show cause. Order 17 rule 2 makes no provision for setting aside such dismissal. Because the order was made ex parte, the plaintiffs could invoke Order 51 rule 15, which empowers the court to set aside an ex parte order.

p. 2
02

Whether the plaintiffs' excuse for non-attendance was excusable

Holding

Yes. The death of advocate Gerald Kimanga on 16th January 2022 and the illness and death of his successor Omboga Makori on 7th March 2023 reasonably explained the non-attendance.

Reasoning

The plaintiffs' advocates had attended court regularly from 2015 to 2021, showing keenness to prosecute. The averments regarding the advocates' deaths were not contested by the defendant. A litigant cannot be blamed for an advocate's illness or death, so the failure to appear on 7th November 2022 was excusable.

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Prejudice to the defendant

Holding

The defendant would suffer no prejudice incapable of compensation in costs; justice could still be done.

Reasoning

The court weighed the proportionality principle from the cited authorities, noting the right to a hearing and the need to do real and substantial justice. Any prejudice from reinstatement could be met by an award of costs, which the court granted together with thrown away costs.

p. 4

Legal principles established

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  • A party cannot be blamed for the illness or death of his advocate; such an excuse for failure to prosecute is reasonable and excusable.
  • The power to set aside an ex parte order is discretionary and must be exercised judiciously to do real and substantial justice.

Court orders

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  1. 1.The order made on 7th November 2022 dismissing the suit with costs for want of prosecution is set aside
  2. 2.The suit is reinstated for hearing on merit
  3. 3.The defendant shall have the costs of the application and thrown away costs assessed at Kshs. 20,000/- payable forthwith
Jurisdiction invoked
Inherent and discretionary powers to set aside ex parte orders under Order 51 rule 15 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, "Virani & another v Kenya Pipeline Company Limited", Case Analysis (2023). Environment and Land Case Civil Suit 357 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21261/eng@2023-11-02

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