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ELCAllowedNot stated in the judgment (Notice of Motion dated 14th December 2023)· [2024] KEELC 697 (KLR)

Chege & another v Ruguru & another (Environment & Land Case E014 of 2022) [2024] KEELC 697 (KLR)

Environment and Land Court
15 February 2024
LGL. GACHERU
2,055 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a land case application dismissed after the plaintiff missed the hearing, because a hospital letter explained the absence — but costs were imposed.

What this practically means

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Executive summary

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The Plaintiffs/Applicants filed a Notice of Motion dated 14th December 2023 under Section 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, seeking to set aside orders made on 26th September 2023 dismissing their earlier application dated 26th July 2023 (which sought stay of execution of the Judgment delivered on 13th July 2023), and to have that application reinstated. The 2nd Applicant swore that on the hearing date his mother, the 1st Plaintiff, fell ill and he took her to hospital, annexing a letter from Muriranjas Sub-county Hospital; he further explained that they had not paid their advocate, who therefore did not attend court. The 1st Defendant/Respondent opposed, contending the matter was concluded by the judgment of 13th July 2023, that the Applicants gave no plausible explanation for non-attendance, and that the application was an afterthought and an abuse of process. The court framed a single issue: whether the Applicants were entitled to the orders sought. Applying Order 12 Rule 7 and the principles in Shah v Mbogo as reiterated in Bilha Ngonyo Isaac v Kembu Farm Ltd, the court held that reinstatement is discretionary and must be exercised justly. Finding the Applicants' explanation plausible, the court allowed the application on condition that the Applicants pay throw away costs of 5,000/= to the Defendants/Respondents before the reinstated application proceeds for hearing, and directed that the post-judgment application be prosecuted expeditiously without further delay.

Key legal issues

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01

Whether the Applicants gave a plausible explanation for non-attendance on 26th September 2023 warranting reinstatement of the dismissed application

Holding

Yes; the hospital letter and explanation of unpaid advocate fees constituted a convincing explanation, and the application was allowed on conditions.

Reasoning

The court exercised its discretion under Section 3A and Order 12 Rule 7. The Applicants annexed a letter from Muriranjas Sub-county Hospital confirming the 1st Plaintiff's illness on the hearing date, and explained financial constraints prevented payment of their advocate. The court found this plausible despite the absence of an affidavit from the advocate, and allowed reinstatement on condition that throw away costs be paid.

p. 4

Legal principles established

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  • Reinstatement of a suit dismissed for non-attendance is at the discretion of the court, to be exercised judiciously to avoid injustice, considering whether the applicant will suffer prejudice if denied a hearing on the merits.
  • Order 12 Rule 7 confers discretion on the court to set aside or vary a dismissal on such terms as may be just.

Court orders

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  1. 1.The Notice of Motion Application dated 14th December 2023 is allowed
  2. 2.The orders granted on 26th September 2023 (dismissal of the application dated 26th July 2023) are set aside, allowing reinstatement of the said application
  3. 3.The post-judgment application dated 26th July 2023 be prosecuted expeditiously without any further delay
  4. 4.The Plaintiffs/Applicants to pay the Defendants/Respondents throw away costs of 5,000/= payable before the next hearing date

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A & 1B
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (2)

  • Bilha Ngonyo Isaac v Kembu Farm Ltd & Another
    (2018) eKLR
  • Shah v Mbogo & another
    (1967) E.A 116
Jurisdiction invoked
Section 3A of the Civil Procedure Act and 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, "Chege & another v Ruguru & another (Environment & Land Case E014 of 2022) [2024] KEELC 697 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 14th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/697/eng@2024-02-15

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