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ELCPartially AllowedNot stated in judgment (ELC Kitale; underlying Land Case No. 71 of 2018 referenced)· [2024] KEELC 3679 (KLR)

Namukana v Hon & 5 others (Environment and Land Miscellaneous Application 3 of 2023) [2024] KEELC 3679 (KLR)

Environment and Land Court
9 May 2024
1,916 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a self-represented litigant's case dismissed after an internet blackout, excusing his drafting errors in the name of substantive justice.

What this practically means

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Executive summary

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By a Notice of Motion dated 07/02/2023, the plaintiff, acting in person, sought reinstatement of an application dismissed for non-attendance and an order that the matter be determined on the pleadings and submissions without a further hearing. The dismissal arose on 30/01/2024 when, during a virtual hearing, the applicant was disconnected by a power failure while using a borrowed smartphone and could not rejoin. The respondents opposed, asserting the applicant knowingly ignored the hearing date and that the application was an afterthought denying them the fruits of judgment. The court framed three issues: propriety of the prayers, merit of the application, and costs. It held the mis-drafted prayer excusable given the applicant's lay status and Article 159(2)(d). On relevance of provisions, it found Articles 48, 50 and Sections 3, 4 and 13 of the ELC Act irrelevant as their applicability was not demonstrated, and instead applied Section 3A of the Civil Procedure Act, Article 159(2)(d) and Order 12 Rule 7 of the Civil Procedure Rules. Guided by Shah v Mbogo, the court found sufficient cause shown, holding the non-attendance was due to circumstances beyond the applicant's control, and criticised the respondents for not conceding an obvious application. The court set aside the dismissal of 30/01/2024, reinstated the application dated 16/05/2023 for virtual hearing on 20/05/2024, and awarded costs to the applicant.

Key legal issues

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01

Whether the mis-drafted prayer for reinstatement (seeking reinstatement 'of this case' rather than of the dismissed application) was fatal

Holding

The court excused the drafting error, treating the application as seeking reinstatement of the application dismissed on 30/01/2024, guided by substantive justice under Article 159(2)(d)

Reasoning

The application dated 26/05/2023 was not itself a 'suit' as defined in Section 2 of the Civil Procedure Act. However, given the applicant is a layman without legal training, and applying Article 159(2)(d) of the Constitution, the court construed the prayer substantively as seeking reinstatement of the application dismissed on 30/01/2024 and excused the manner of drafting.

p. 3
02

Whether the dismissal for non-attendance on 30/01/2024 should be set aside

Holding

Yes - sufficient cause was shown; the applicant's non-attendance resulted from internet disruption due to power failure beyond his control

Reasoning

Applying Order 12 Rule 7 and the Shah v Mbogo principles, the court found the applicant made genuine efforts to attend virtually, even borrowing a court officer's phone, and failed only due to a power/internet breakdown beyond his control. The court exercised its discretion to set aside the dismissal, criticising the respondents for opposing an obvious application rather than conceding.

p. 4
03

Whether the cited constitutional and statutory provisions were applicable

Holding

Articles 48 and 50 and Sections 3, 4 and 13 of the ELC Act were irrelevant as their relevance was not demonstrated; Articles 159(2)(d) and Section 3A CPA and Order 12 Rule 7 CPR were the relevant provisions

Reasoning

The court held that litigants must explain the relevance of provisions they cite. It was not demonstrated that the applicant had been denied access to justice or a fair hearing, rendering Articles 48 and 50 and the ELC Act provisions irrelevant. The court instead relied on its inherent powers under Section 3A CPA, Article 159(2)(d), and Order 12 Rule 7 CPR governing setting aside dismissals.

p. 3

Legal principles established

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  • The court's discretion to set aside a dismissal or ex parte judgment is to be exercised judiciously to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction
  • Litigants should not cite provisions of law irrelevant to their case without explaining their relevance

Court orders

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  1. 1.Set aside the orders of dismissal of 30/01/2024 (dismissal for non-attendance)
  2. 2.Reinstate the Application dated 16/05/2023 to hearing
  3. 3.Set the reinstated application for virtual hearing on 20/05/2024 at 08:30 AM
  4. 4.Costs of the application granted to the Applicant

Authorities

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Legislation

  • Environment and Land Court ActSections 3, 4, 13
  • Civil Procedure ActSection 2 (definition of 'suit'); Section 3A
  • Civil Procedure RulesOrder 12 Rule 7; Order 15 Rule 7
  • Constitution of Kenya, 2010Articles 48, 50, 159(2)(d)

Cases cited (1)

  • Shah v. Mbogo & another
    [1967] EA 116
Jurisdiction invoked
Sections 3, 4 and 13 of the Environment and Land Court Act; Section 3A of the Civil Procedure Act; Order 12 Rule 7 of the Civil Procedure Rules; Articles 48, 50 and 159 of the Constitution of Kenya, 2010

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, "Namukana v Hon & 5 others (Environment and Land Miscellaneous Application 3 of 2023) [2024] KEELC 3679 (KLR)", Case Analysis (2024). Not stated in judgment (ELC Kitale; underlying Land Case No. 71 of 2018 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3679/eng@2024-05-09

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