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ELCAllowedEnvironment & Land Case 33 of 2019· [2023] KEELC 21501 (KLR)

Mukanda v Muganda & another

Environment and Land Court
14 November 2023
DOD. O. Ohungo
965 words in judgment
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The bottom line

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A Kenyan court confirmed it can revive a case dismissed for non-attendance, restoring a landowner's adverse possession claim and cancelling the awarded costs.

What this practically means

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Executive summary

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The plaintiff sued for title to S/Wanga/Buchia/2201 by adverse possession via Originating Summons filed in the High Court on February 9, 2012, later transferred to the Environment and Land Court at Kakamega. On September 20, 2022 the suit was dismissed for non-attendance despite service. The plaintiff filed Notice of Motion dated October 18, 2022 seeking to set aside the dismissal, supported by an affidavit of his counsel, Phelisters M Toloi, who explained that holding-brief counsel Mr Khayumbi had stepped out to make a phone call when the matter was called out. The second defendant opposed via grounds of opposition, arguing the court was functus officio, that there was inordinate delay, and that the application was an afterthought. The first defendant had died on December 7, 2021 and was never substituted, so his estate did not participate. Following the dismissal, the second defendant's bill of costs was taxed at KShs 243,200 on December 21, 2022. Ohungo J held that under Order 12 rule 7 of the Civil Procedure Rules, 2010 the court was not functus officio, and applying Mbogoh v Shah principles found the uncontroverted explanation credible, no inordinate delay (application filed within about 45 days), and no prejudice not compensable by costs. The dismissal and all consequential orders, including the taxation and any execution, were set aside; costs of the motion were made costs in the cause.

Key legal issues

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01

Functus officio

Holding

The court is not functus officio; Order 12 rule 7 confers jurisdiction to set aside a dismissal for non-attendance.

Reasoning

The second defendant argued the dismissal was a considered ruling rendering the court functus officio. The court rejected this, distinguishing a dismissal for non-attendance from a considered determination on the merits, and held that Order 12 rule 7 of the Civil Procedure Rules, 2010 expressly empowers it to set aside such an order.

02

Whether to set aside the dismissal

Holding

Setting aside granted: the explanation (holding-brief counsel stepped out) was uncontroverted, there was no inordinate delay, and no prejudice not compensable by costs.

Reasoning

Applying Mbogoh v Shah principles, the court found the plaintiff's explanation credible since the second defendant filed no affidavit to challenge it; the application was filed within about 45 days; and any prejudice could be compensated by costs, with parties still to have their day in court.

Legal principles established

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  • A court that has dismissed a suit for non-attendance retains jurisdiction under Order 12 rule 7 to set aside that order and is not functus officio.
  • Setting aside of dismissal for non-attendance is governed by the Mbogoh v Shah discretion: reason for non-attendance, delay, prejudice and the interest of justice.

Court orders

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  1. 1.The order of September 20, 2022 dismissing the plaintiff's case with costs to the second defendant is set aside
  2. 2.All other consequential orders including the taxation of party and party costs on December 21, 2022 and any execution process arising therefrom are set aside
  3. 3.Costs of Notice of Motion dated October 18, 2022 shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 12 rule 7

Cases cited (2)

  • Mbogoh & another v Shah
    [1968] EA 93

    Principles for setting aside dismissal for non-attendance: discretion to avoid injustice from accident, inadvertence or excusable mistake.

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

    Reiteration of the Mbogoh v Shah principles on setting aside.

Jurisdiction invoked
Order 12 rule 7 of the Civil Procedure Rules, 2010

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, "Mukanda v Muganda & another", Case Analysis (2023). Environment & Land Case 33 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21501/eng@2023-11-14

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