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ELCPartially AllowedNot stated in judgment· [2024] KEELC 1399 (KLR)
Melly v Yator (Environment & Land Case 28 of 2020) [2024] KEELC 1399 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This ruling by the Environment and Land Court at Eldoret (E. O. Obaga, J) determined a notice of motion dated 14 November 2023 in which the Plaintiff/Applicant sought setting aside, variation or review of the court's orders of 3 October 2023 dismissing his suit for want of prosecution, and reinstatement of the suit for hearing on merit. The dismissal arose when the Applicant's counsel, engaged before Justice Wananda and Justice Nyakundi, did not attend at the allocated time of 11.30 a.m., and the Respondent's counsel asked the court to dismiss the suit. The Respondent opposed, contending the application was defective, meant only to attract sympathy, and that counsel's failure was a failure to organise her diary; he asserted prejudice if the suit were reinstated. The court framed a single issue: whether the Applicant had shown sufficient reasons to warrant the exercise of the court's discretion in his favour. Noting that this was a part-heard matter with the Plaintiff having testified and three witnesses remaining, and that WhatsApp communications evidenced counsel's engagement elsewhere and communication with the Respondent's counsel, the court held the reason for non-attendance excusable. It found that the Respondent's counsel should not have insisted on dismissal without disclosing that she had been in touch with the Applicant's counsel. Applying Shah v Mbogo (1967) EA 116, the court allowed the application, set aside the dismissal order of 3 October 2023, reinstated the suit for hearing, and ordered the Applicant to pay the Respondent's counsel thrown away costs of Kshs 15,000/= before the next hearing date.
Key legal issues
#01
Whether the reason for non-attendance was excusable so as to justify setting aside dismissal of the suit
Holding
The reason for non-attendance was excusable; the application was allowed and the suit reinstated
Reasoning
The Applicant's counsel was held up before Justice Wananda and Justice Nyakundi and had communicated this to the Respondent's counsel via WhatsApp. The Respondent's counsel nonetheless sought dismissal without disclosing that communication to the court. The court found this conduct material and exercised its discretion to reinstate the part-heard suit on terms of thrown away costs.
p. 3
Legal principles established
#- The court's discretion to set aside dismissal orders is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but not to assist a person who deliberately seeks to obstruct or delay justice
Court orders
#- 1.Order of 3.10.2023 dismissing the suit set aside
- 2.Suit reinstated for hearing
- 3.Applicant to pay Respondent's counsel thrown away costs of Kshs 15,000/= payable before the next hearing date
- Jurisdiction invoked
- Inherent discretion of the court to set aside its own dismissal orders (not expressly stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Melly v Yator (Environment & Land Case 28 of 2020) [2024] KEELC 1399 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1399/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.