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ELCAllowedNot stated in the judgment· [2024] KEELC 3572 (KLR)

Muthoki & 2 others v Mosica Properties Company Ltd (Environment & Land Case 76 of 2019) [2024] KEELC 3572 (KLR)

Environment and Land Court
11 April 2024
ANA. Nyukuri
1,552 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Machakos reinstated a land suit dismissed without the plaintiffs' lawyer being served with a hearing notice.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 20th March 2023 by the plaintiffs/applicants seeking to set aside an order of dismissal of their suit made on 31st January 2023, to admit a bundle of documents dated 3rd March 2023 as their list of documents, and for costs. The application was supported by the affidavit of Irene Nthenya Nduva, the 3rd plaintiff, who explained that when the hearing date was fixed on 17th October 2022, her counsel's call dropped due to internet and connectivity challenges, and that counsel was neither present nor served with the hearing notice for 31st January 2023. She also noted that the 1st and 2nd plaintiffs had died and substitution was in progress. The respondent, through its director John Makusi Simiyu, opposed, alleging the applicants were indolent and that the record showed both parties were present when the date was fixed. The court identified a sole issue: whether the applicant met the threshold for setting aside the dismissal order. Applying Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules and the principles in Shah v Mbogo, the court perused its record and confirmed that the plaintiffs' counsel was absent when the hearing date was fixed, making it imperative for defence counsel to serve a hearing notice, which was not done. The court held the plaintiffs were genuinely unaware of the hearing date, allowed the application, set aside the dismissal, reinstated the suit for hearing, admitted the bundle of documents as the plaintiffs' list of documents, and ordered costs of the application to abide the determination of the suit.

Key legal issues

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01

Whether the applicant met the threshold for setting aside the dismissal order of 31st January 2023

Holding

The application was merited because the hearing date was fixed in the absence of the plaintiff's counsel, who was not served with a hearing notice.

Reasoning

The court restated the Shah v Mbogo principles that the discretion to set aside ex parte orders exists to avoid injustice from accident, inadvertence or excusable mistake. On the record, counsel for the plaintiff was absent when the hearing date of 31st January 2023 was fixed due to connectivity challenges, so service of a hearing notice by the defence was imperative. Having not been served, the plaintiffs were unaware of the hearing date, constituting sufficient cause under Order 12 Rule 7 to set aside the dismissal and reinstate the suit.

p. 3

Legal principles established

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  • The court has unfettered discretion to set aside ex parte orders, to be exercised judiciously based on sufficient cause.
  • Where a hearing date is issued in the absence of a party's counsel who was not served, the dismissal for non-attendance ought to be set aside.

Court orders

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  1. 1.The order of dismissal made on 31st January 2023 is set aside and the suit is reinstated for hearing
  2. 2.The bundle of documents dated 3rd March 2023 is admitted as the plaintiffs' list of documents
  3. 3.Costs of the application to abide the determination of the suit

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure RulesOrder 11
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Shah v Mbogo & another
    [1967] EA 116
  • Patel v East Africa Cargo Handling Services Ltd
    [1974] TA75
  • Philip Chemwolo & another v Augustine Kubende
    [1982-1988] KAR 103
  • Murai v Wainaina (No 4)
    (1982) eKLR 38
  • Rupa Savings and Credit Cooperative Society v Violet Shidogo
    [2022] eKLR
Jurisdiction invoked
Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules, and sections 1A, 1B and 3A of the Civil Procedure Act

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, "Muthoki & 2 others v Mosica Properties Company Ltd (Environment & Land Case 76 of 2019) [2024] KEELC 3572 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3572/eng@2024-04-11

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