Siro & 4 others (Suing on Their Own Behalf and on Behalf of listed Members of Adhoch Clan) v Okuna & 5 others
The bottom line
#A Siaya court refused to revive a land appeal dismissed after the lawyer missed a virtual hearing, ruling that technical problems are no excuse if you fail to prepare.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause was shown to set aside the dismissal order of 02/05/2023
No sufficient cause was shown; counsel's late joining of the virtual session and software problems were not excusable
The court exercised its discretion under Order 12 Rule 7, adopting the test that sufficient cause is a question of fact. Counsel joined at 9:19 am, well past the 08:45 am preparation deadline in Practice Direction 30(b), so her Teams App difficulties should have been resolved earlier. The court also noted a pattern of non-attendance and delay by the appellants and their counsel.
Whether the motion was properly brought as a review
The motion was not moved under Section 80 CPA and Order 45 Rule 1, so the review prayer was unsupported; the court treated it as an application to set aside under Order 12 Rule 7
Although the notice of motion sought review, the grounds and affidavit did not advance review grounds and the motion was not anchored on Section 80 of the Civil Procedure Act or Order 45 Rule 1. The court therefore construed the motion as one to set aside or vary the dismissal order under Order 12 Rule 7 and determined it on that basis.
Legal principles established
#- An applicant seeking to set aside an order for non-attendance must tender sufficient cause; a technical hitch with virtual platforms does not suffice where counsel should have resolved it within the 15-minute pre-session window under the Practice Directions
Court orders
#- 1.The motion dated 02/05/2023 is dismissed for want of sufficient grounds to warrant a variation and or setting aside of the orders issued on 02/05/2023
- 2.No orders as to costs
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules (inherent power to set aside or vary orders; motion also invoking interests of substantive justice)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Siro & 4 others (Suing on Their Own Behalf and on Behalf of listed Members of Adhoch Clan) v Okuna & 5 others", Case Analysis (2023). Environment and Land Appeal 30 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21391/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.