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ELCPartially AllowedNot stated in the ruling (ELC at Nakuru)· [2024] KEELC 471 (KLR)

Koech v Gitonga & 4 others (Environment and Land Case 212 of 2017) [2024] KEELC 471 (KLR)

Environment and Land Court
6 February 2024
1,800 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 suit dismissed after the plaintiff missed a hearing, provided he explains the absence, acts promptly, and no one is prejudiced.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) determined a Notice of Motion dated 24th July 2023 by the plaintiff, Samwel Kipngeno Koech, seeking reinstatement of his suit which had been dismissed on 23rd November 2022 for non-attendance under Order 12 Rule 3(1) of the Civil Procedure Rules. The plaintiff deponed that on 22nd November 2022 he fell ill and instructed his advocate to seek an adjournment; his advocate notified the 1st defendant's counsel and paid Kshs.3,000/= (evidenced by an M-Pesa statement) to an advocate to hold his brief, but no one held the brief and the suit was dismissed. He attributed the delay in filing the reinstatement application to the file being untraceable at the Nakuru registry. The 1st defendant opposed, alleging inordinate delay, absence of medical evidence, and an intent to delay the case. The 2nd to 5th defendants did not respond. The court framed the issue as whether the plaintiff met the threshold for reinstatement, holding that the applicant must give excusable reasons for non-attendance, file without inordinate delay, and show no prejudice to the defendant. Finding the explanation sufficient, no prejudice demonstrated by the 1st defendant, and guided by Article 159(2)(d) on substantive justice, the court allowed the application, set aside the dismissal, reinstated the suit for inter partes hearing, and directed the plaintiff to fix the suit for hearing within 30 days, failing which it would stand dismissed.

Key legal issues

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01

Whether the plaintiff's explanation for non-attendance was excusable

Holding

Yes - the plaintiff notified his advocate who in turn informed the 1st defendant's counsel, which sufficed as a sufficient explanation

Reasoning

The plaintiff deponed that he fell ill on 22nd November 2022 and instructed his advocate to take another date. His advocate contacted the 1st defendant's counsel and paid Kshs.3,000/= to an advocate to hold his brief, evidenced by an M-Pesa statement to Waiganjo Mwangi, whose firm was on record for the 1st defendant. The court found this sufficed as a sufficient explanation for absence.

p. 4
02

Whether the 1st defendant demonstrated prejudice from reinstatement

Holding

No prejudice was demonstrated; reinstatement serves substantive justice under Article 159(2)(d)

Reasoning

The 1st defendant opposed reinstatement on grounds of inordinate delay and lack of evidence of illness, but the court found she did not demonstrate any prejudice she would suffer if the suit were reinstated and heard on merit. The court invoked the constitutional duty to dispense substantive justice without undue regard to procedural technicalities.

p. 4

Legal principles established

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  • An applicant for reinstatement of a suit dismissed for non-attendance must show sufficient, excusable reasons for non-attendance, file the application without inordinate delay, and show the defendant will suffer no prejudice.

Court orders

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  1. 1.The orders issued on 23rd November 2022 dismissing the suit for non-attendance are set aside and the suit is reinstated for inter partes hearing
  2. 2.Plaintiff to fix the case for hearing within 30 days, failing which the suit stands dismissed

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 12 Rule 3(1)
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil ProcedureOrder 21 [1]

Cases cited (9)

  • Coftea Machinery Services Ltd v Akiba Bank Ltd & 2 others
    [2004] eKLR
  • Mwinyi Rama Ngwaya v Lenny Mazwell Kivuti & another
    [2019] eKLR
  • K.G. Patel & Sons Ltd. –vs- John Kabukuru Gituro
    [2016] eKLR
  • David Bundi v Timothy Mwenda Muthee
    [2022] eKLR
  • Njue Njagi v Ephantus Njiru & Another
    [2016] eKLR
  • Shah v Mbogo & Another
    [1967] EA 116
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Esther Nyambura Ngotho v Harbans Singh Birdi & 2 others
    [2014] eKLR
  • Ivita vs Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Inherent discretion under 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, "Koech v Gitonga & 4 others (Environment and Land Case 212 of 2017) [2024] KEELC 471 (KLR)", Case Analysis (2024). Not stated in the ruling (ELC at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/471/eng@2024-02-06

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