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ELCPartially Allowed· [2024] KEELC 1765 (KLR)

Mung’aru & 56 others v Kamulu Housing Co-operative Society Ltd & 3 others (Environment & Land Case E004 of 2020) [2024] KEELC 1765 (KLR)

Environment and Land Court
11 April 2024
ANA. NYUKURI
2,546 words in judgment
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The bottom line

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What this practically means

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Executive summary

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By an application dated 16th October 2023 and filed on 17th January 2024, the 2nd defendant, through its director Charles Kyalo, sought to set aside the order of 27th September 2023 dismissing its counterclaim for want of prosecution and to be allowed to present its case in a suit by the plaintiffs, members of the 1st defendant, seeking cancellation of its title to approximately 800 acres excised from LR 8485 IR No 10656 in Kamulu/Syokimau, Machakos County. The applicant attributed non-attendance to the indisposition of its advocate, Mr. Bundi, who had communicated his illness, and attributed the delay in filing the application to the incapacity of its directors - one deceased, one paralyzed after a road traffic accident. The plaintiffs opposed, alleging inordinate and unexplained delay, contempt of court orders, and deliberate scuttling of the hearing. The court, per A. Nyukuri J, framed a single issue: whether the applicant deserved the orders sought. Relying on Order 51 Rule 15 and Order 12 Rule 7 of the Civil Procedure Rules and the principles in Shah v Mbogo, the court held that the delay was explained, the applicant had never previously sought an adjournment, and the plaintiffs suffered no prejudice beyond delay which could be mitigated by costs. The application was allowed: the dismissal of the 2nd defendant's counterclaim was set aside and the counterclaim reinstated for hearing on merit, on condition that the 2nd defendant pays the plaintiffs thrown away costs of Kshs. 50,000/= within 30 days. The testimony already taken was not disturbed, as no prayer sought to revisit it.

Key legal issues

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01

Whether the dismissal of the 2nd defendant's counterclaim for want of prosecution should be set aside

Holding

Yes - the delay was explained by the incapacitation of the directors (death, illness and paralysis), the applicant had never previously sought an adjournment, and the plaintiffs showed no prejudice beyond delay which could be mitigated by costs.

Reasoning

Order 51 Rule 15 and Order 12 Rule 7 of the Civil Procedure Rules confer discretion to set aside ex parte orders and dismissals. Applying Shah v Mbogo, the discretion is exercised to avoid injustice from accident, inadvertence or excusable mistake. The applicant explained non-attendance through counsel's indisposition and the directors' incapacity. The plaintiffs' only prejudice was delay, mitigable by costs, so justice required reinstating the counterclaim.

p. 5

Legal principles established

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  • The court's discretion to set aside ex parte orders is unfettered but must be exercised judiciously based on sufficient cause, to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay the course of justice.

Court orders

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  1. 1.The order made on 27th September 2023 dismissing the 2nd defendant's counterclaim for want of prosecution is set aside, and the 2nd defendant's counterclaim is reinstated for hearing on merit.
  2. 2.The 2nd defendant to pay the plaintiffs thrown away costs of Kshs. 50,000/= within 30 days of the ruling.

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (2)

  • Shah v Mbogo
    (1967) EA 116
  • John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 Others
    (Petition 17 of 2015) [2021] Kesc 3 (KRL) (Civ) (6 Aug 2021)
Jurisdiction invoked
Order 12 Rule 7 and Order 51 Rule 15 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, "Mung’aru & 56 others v Kamulu Housing Co-operative Society Ltd & 3 others (Environment & Land Case E004 of 2020) [2024] KEELC 1765 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1765/eng@2024-04-11

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