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ELCDismissedNot stated in the judgment (Meru ELC suit; application dated 4.12.2023)· [2024] KEELC 1724 (KLR)

Gituma & another v Manene & another (being sued as the legal representatives of the Estate of Manene Tumanga) (Enviromental and Land Originating Summons E017 of 2022) [2024] KEELC 1724 (KLR)

Environment and Land Court
20 March 2024
2,233 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a dismissed land suit because the plaintiff blamed his lawyer without showing he ever followed up on his own case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru (C K Nzili J) on the applicant's notice of motion dated 4.12.2023 seeking review, variation and setting aside of the orders made on 18.1.2023, 4.10.2023 and 2.11.2023, reinstatement of his suit for adverse possession, and seven days to comply with Order 11 of the Civil Procedure Rules. The applicant blamed his former advocates for the failure to comply with court directions and to attend court, asserting he was unaware of the ruling of 4.10.2023 which gave him 21 days to comply or face dismissal. The respondent opposed, contending the applicant was an indolent litigant who repeatedly failed to attend court or comply, that no prejudice would be suffered since no prima facie case had been established, and that the application was a delaying tactic and abuse of process. The court reviewed the litigation history: non-attendance on 13.2.2023, 15.5.2023, 30.5.2023 and 31.7.2023, failure to comply with Order 11, failure to serve documents filed on 7.3.2023, and the conditional dismissal order of 4.10.2023. Applying Savings & Loan Ltd v Wanjiru Muritu, Ivita v Kyumbu, Eastern Radio Service v Tiny Tots, Omar Sharif v Freight Forwarders and related authorities, the court held that a litigant is bound by the acts and omissions of his advocates, that extension of time is discretionary and not a right, and that the plaintiffs' inordinate, unexplained delay evidenced indolence and lack of interest, with fair hearing and access to justice claims being subject to the defendant's rights. Finding no sufficient cause and no basis to review the impugned orders, the court dismissed the motion with costs to the respondent on 20 March 2024.

Key legal issues

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01

Whether sufficient cause was shown for review and reinstatement

Holding

No sufficient cause was shown; the plaintiffs' missteps and inattention amounted to indolence and indifference

Reasoning

The court traced the plaintiffs' non-attendance on at least four occasions, non-compliance with Order 11, failure to serve filed documents on the defendants, and absence at the hearing of their own dated application. The applicants could not identify any date they contacted or visited their former advocates between 18.1.2023 and 2.11.2023, showing complete miscommunication and shared negligence rather than excusable mistake by counsel alone.

p. 4
02

Whether blame can be shifted to former advocates

Holding

No; the case belongs to the plaintiffs, who must take the consequences of their advocates' mistakes, especially where they share the negligence

Reasoning

Relying on Savings & Loan Ltd v Wanjiru Muritu, Tana & Arthi Rivers Development Authority, Ongom v Owota and Rukenya Buuri, the court held that a litigant must constantly monitor the progress of the case. Communication is two-way, and the applicants left everything to their lawyers, so the lawyer's failures cannot excuse their own lack of vigilance.

p. 4
03

Interaction of fair hearing and access to justice with the defendant's rights

Holding

The plaintiffs' rights to a fair hearing and access to justice are subject to the defendant's rights and were not earned by honesty or diligence

Reasoning

Although the applicant invoked Article 159 and his right to be heard, the court held those rights are qualified by the defendant's corresponding rights. The plaintiffs had not been candid with the court about the instructions given to their former advocates and manufactured an impression of ignorance of the suit's progress.

p. 4
04

Principles for dismissal and reinstatement upon willful non-compliance

Holding

Dismissal is a last resort for willful default, but reinstatement requires good and sufficient reasons; here the default was unexcused

Reasoning

Relying on Omar Sharif v Freight Forwarders, Caribbean General Insurance v Frizzell, Eastern Radio Service v Tiny Tots (Newbold P) and Ivita v Kyumbu, the court set out that pre-emptory dismissal requires willful, inexcusable default, but justice must balance both parties. The plaintiffs' inordinate, unexplained delay and repeated non-attendance disentitled them to the discretionary relief.

p. 3

Legal principles established

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  • A litigant is bound by the acts and omissions of his advocates, particularly where the litigant shares the blame or was privy to the default; blaming counsel alone is insufficient
  • The court's discretion to reinstate a suit dismissed for non-compliance and non-attendance must be exercised judiciously and on sound principles, upon good and sufficient reasons
  • The penalty of dismissal for willful non-compliance is imposed only as a last resort where default is willful or inexcusable
  • Extension of time to comply is not a right but a discretionary relief for deserving cases, considering the public interest and the overriding objective
  • A party seeking reinstatement must show tangible steps taken in following up the matter, not merely blame the advocate

Court orders

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  1. 1.The notice of motion dated 4.12.2023 seeking review of the orders of 18.1.2023, 4.10.2023 and 2.11.2023 and reinstatement of the suit is dismissed
  2. 2.Costs of the application to the defendant/respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 11
  • Constitution of Kenya, 2010Article 159
  • Civil Procedure ActSections 1A & 1B

Cases cited (13)

  • Savings & Loan Ltd vs Wanjiru Muritu
    Nrb HCC No. 397 of 2002
  • Ali Mohammed Haji Suleiman Body Builders Ltd vs Jivraj & another
    (1990) KLR 224
  • Omar Sharif t/a Kemco Auto vs Freight Forwarders Ltd & another
    (2008) eKLR
  • Carribean General Insurance Ltd vs Frizzel Insurance Broker Ltd
    (1994) 2 Lloyds Report 32
  • Eastern Radio Service vs Tiny Tots
    (1967) EALR 393
  • Nicholas Arap Salat vs IEBC and others
    (2014) eKLR
  • Tana & Arthi Rivers Development Authority vs Jeremiah Kimigho Mwakio & others
    (2015) eKLR
  • Edney Adaka Ismail vs Equity Bank (K) Ltd
    (2014) eKLR
  • Ivita vs Kyumbu
    (1984) KLR 441
  • Abdi Noor Umar vs Adan Mamo Elema & 2 others; County Government of Isiolo (IP)
    (2022) eKLR
  • Patriotic Guards Ltd vs James Kipchirchir Sambu
    (2018) eKLR
  • Ongom vs Owota
    (2023) eKLR
  • Rukenya Buuri vs. M'arimi Ming'ora & 2 others
    (2018) eKLR
Jurisdiction invoked
Inherent discretion to review and reinstate a suit dismissed for non-compliance, under the Civil Procedure Act (Sections 1A & 1B) and Order 11 of the Civil Procedure Rules, read with Article 159 of the Constitution

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, "Gituma & another v Manene & another (being sued as the legal representatives of the Estate of Manene Tumanga) (Enviromental and Land Originating Summons E017 of 2022) [2024] KEELC 1724 (KLR)", Case Analysis (2024). Not stated in the judgment (Meru ELC suit; application dated 4.12.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1724/eng@2024-03-20

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