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ELCDismissedKitui ELC Appeal No. 4 of 2021 (originally Machakos ELC Appeal No. 24 of 2019)· [2024] KEELC 1393 (KLR)

Mbugi & another v Matundio (Environment and Land Appeal 4 of 2021) [2024] KEELC 1393 (KLR)

Environment and Land Court
7 March 2024
2,402 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to reinstate an appeal dismissed after four years of inaction, warning that blaming your lawyer won't save a neglected case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitui, delivered by Hon. L. G. Kimani, Judge, on 7th March 2024, determined a Notice of Motion dated 15th August 2023 by the appellants seeking to set aside the dismissal of their appeal for want of prosecution and to have the appeal reinstated, with costs in the cause. The appeal, filed on 11th June 2019 as Machakos ELC Appeal No. 24 of 2019 and renumbered Kitui ELC Appeal No. 4 of 2021, was dismissed on 21st April 2022 after the appellants' advocates, Munyoki Peter & Co. Advocates, failed to attend several mentions while the respondent's advocates attended. The applicants claimed they lost contact with their advocate, that the 1st Appellant fell ill and was financially constrained, and that they discovered the dismissal only later, without any notice of dismissal having been served on them. The respondent opposed, producing affidavits of service, noting the bill of costs had been filed and taxed at Kshs. 90,000/=, and contending that the applicants had been indolent for over two years, that the delay was unexplained, and that no medical proof of illness was attached. Applying Order 12 rule 7 of the Civil Procedure Rules, Article 159(2)(d) of the Constitution, and authorities including Savings and Loans Limited v Susan Wanjiru Muritu, Shah v Mbogo and M/S Portreitz Maternity v James Karanga Kabia, the court held that a litigant must pursue his case and not merely blame counsel, that the applicants' slumber was disrupted only by execution proceedings, and that litigation must come to an end. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the court should exercise its discretion under Order 12 rule 7 to set aside the dismissal of the appeal for want of prosecution

Holding

The court declined to set aside the dismissal, finding the appellants indolent and their excuses insufficient.

Reasoning

The court adopted the reasoning in Savings and Loans Limited v Susan Wanjiru Muritu that a case belongs to the litigant and not the advocate. The appellants' advocate failed to attend numerous mentions while the respondent's advocates were present, and the appellants never followed up. The 1st Appellant attached no medical proof of illness, and no explanation was given for the 2nd Appellant's inaction. The application was filed more than a year after dismissal, only prompted by execution proceedings. Reinstatement would plunge the respondent into endless litigation.

p. 4
02

Whether Article 159(2)(d) of the Constitution (justice without undue regard to procedural technicalities) entitled the appellants to reinstatement

Holding

Article 159 could not salvage the application because the delay and indolence were not deserving cases for its invocation.

Reasoning

The applicants invoked Article 159(2)(d) and the overriding objective. The respondent relied on the Supreme Court's holding in Nicholas Kiptoo arap Korir Salat v IEBC that Article 159 is not a panacea for every breach of procedure and only avails in deserving cases. The court found the four-year non-prosecution and the late application did not constitute a deserving case.

p. 3

Legal principles established

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  • A litigant has a duty to pursue the prosecution of his or her case and to constantly check with the advocate the progress of the case; a party cannot simply blame an advocate but must show tangible steps taken in following up the matter.
  • The discretion to set aside a dismissal is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a person who has deliberately obstructed or delayed the course of justice.
  • Litigation must come to an end; a successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.

Court orders

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  1. 1.The application dated 15th August 2023 is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 12 rule 7

Cases cited (9)

  • John Nahashon Mwangi v Kenya Finance Bank Limited (in liquidation)
    (2015) eKLR
  • Mary Wambui Kabugu v Kenya Bus Services Limited
    (1997) eKLR
  • Habo Agencies Limited v Wilfred Odhiambo Musiingo
    (2020) eKLR
  • Savings and Loans Limited v Susan Wanjiru Muritu
    Nairobi HCCC 397/2002
  • Bryan Chebii Kipkoech v Barnabas Tuitoek Bargoria & Another
    (2019) eKLR
  • Nicholas Kiptoo arap Korir Salat v. IEBC & 7 others
    (2014) eKLR
  • International Air Transport Association & another v Roskar Travel Limited & 3 others
    (Civil Case E457 of 2020) [2022] KEHC 200 (KLR)
  • M/S Portreitz Maternity v James Karanga Kabia
    Civil Appeal No. 63 of 1997
  • Shah v Mbogo
    [1967] EA 116
Jurisdiction invoked
Order 12 rule 7 of the Civil Procedure Rules (application to set aside dismissal of appeal for want of prosecution)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mbugi & another v Matundio (Environment and Land Appeal 4 of 2021) [2024] KEELC 1393 (KLR)", Case Analysis (2024). Kitui ELC Appeal No. 4 of 2021 (originally Machakos ELC Appeal No. 24 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1393/eng@2024-03-07

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