Pondeni Farmers’ Cooperative Society Limited & another v Commissioner for Cooperative Development & 4 others (Petition 3 of 2010) [2024] KEELC 1657 (KLR)
The bottom line
#A Kenyan court refused to reinstate a dismissed land petition because the applicants lied under oath about attending the hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel's absence and alleged mistake justified setting aside the dismissal of the petition
The court accepted, giving counsel the benefit of doubt, that the counsel's mistake was excusable and should not be visited on the client, despite the defective annexure TNM 1.
Although annexture TNM 1 evidenced a workshop held between 30/10/2023 and 02/11/2023 and not the material date, counsel pleaded for the benefit of doubt. The court noted counsel are not infallible, and relying on Grace Njeri Mbugua and the Trust Bank line of authority, held that the agency relationship between client and advocate should be severed only in exceptional cases, and excused the counsel's mistake here.
Whether the petitioners' claim that a representative (Peter Walucho) attended court and the matter was never called out was credible
The court found the allegation to be a lie on oath, directly contradicted by the court record showing both counsel and petitioners absent and State Counsel applying for dismissal.
The court recalled calling out the parties both inside and outside the courtroom, as was its practice. Walucho's further affidavit alleged the court did not call out the matter and permitted State Counsel to have the petition dismissed - an extremely serious allegation contradicted by the record. The court held that swearing falsehoods to mislead it disentitled the applicants to discretion, and unsubstantiated derogatory allegations against State Counsel were designed to whip sympathy.
Whether a party who lies on oath can still benefit from the principle that counsel's mistake should not be visited on the client
No - the falsehoods of the party's representative rendered the application wholly unmeritorious notwithstanding the excusable mistake of counsel.
Citing Motuka, the court noted there are instances when the client may not be innocent. Setting aside the dismissal on the basis of the falsehoods would set a dangerous precedent that liars are innocent parties. The equitable maxim of clean hands operated against the applicants, and the application was dismissed with costs.
Legal principles established
#- Before dismissing a suit for non-attendance under Order 12 Rule 3, the court must satisfy itself that the party was aware of the hearing and absent, and must call out the matter inside and outside the courtroom; dismissal follows unless there is good cause.
- The discretion to set aside a dismissal under Order 12 Rule 7 is wide but must be exercised judiciously, to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who has deliberately obstructed or delayed the course of justice.
- A party who lies on oath loses the equitable right to the exercise of the court's discretion; a litigant who comes to equity with soiled hands cannot merit its favour.
- Courts should not accept unsubstantiated assertions that counsel committed a mistake; where allegations of counsel's mistake are made, the court must consider whether counsel owned the mistake or whether the client has demonstrated how it occurred.
Court orders
#- 1.The Application dated 16th November, 2023 is dismissed
- 2.Costs of the application to the Respondents
- Jurisdiction invoked
- Articles 50 and 159 of the Constitution of Kenya, 2010; Sections 1, 3, 3A and 63(e) of the Civil Procedure Act; Orders 12 Rule 7 and 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pondeni Farmers’ Cooperative Society Limited & another v Commissioner for Cooperative Development & 4 others (Petition 3 of 2010) [2024] KEELC 1657 (KLR)", Case Analysis (2024). Notice of Motion dated 16th November 2023 (Petition number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1657/eng@2024-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.