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ELCAllowedNot stated in the judgment as provided· [2024] KEELC 4006 (KLR)

Kamunge v Koech (Enviromental and Land Originating Summons 10 of 2022) [2024] KEELC 4006 (KLR)

Environment and Land Court
2 May 2024
LOL. A. Omollo
2,118 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 reopened a land case closed after counsel missed a virtual hearing, but made the lawyer's client pay Kshs. 50,000 in thrown away costs.

What this practically means

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Executive summary

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This ruling by L. A. Omollo, J, delivered virtually at Kericho on 2nd May 2024, determines a Notice of Motion dated 1st November 2023 by the Defendant in an adverse possession Originating Summons concerning Nakuru Municipality Block 21/188. The Applicant sought to set aside directions and orders issued on 25th September 2023 closing both parties' cases. The Applicant, who was present in court, contended his advocate was appearing virtually but was addressing the High Court in Chuka and, after encountering a technical hitch, could not join the virtual platform, resulting in the Plaintiff's case being heard and closed in his absence. The Respondent opposed, asserting the hearing date was taken by consent, counsel's calls went unanswered, no evidence showed counsel was in Chuka, and that reopening would delay the suit, he having already testified and filed submissions. The court framed one issue: whether the Applicant was entitled to setting aside of the 25th September 2023 proceedings and reopening of the cases. Applying Order 12 Rule 7 of the Civil Procedure Rules and Patel v E.A Cargo Handling Services and Shah v Mbogo, the court noted doubts about counsel's candour, as the record showed no appearance at call over and unanswered calls, and no record of the Defendant informing the court of counsel's absence. Nonetheless, holding that mistake of counsel should not be visited on the client and invoking the right not to be condemned unheard, the court allowed the application, set aside the impugned proceedings and all subsequent orders, reopened both parties' cases, and awarded thrown away costs of Kshs. 50,000 payable before the hearing date, with costs of the application in the cause.

Key legal issues

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01

Setting aside proceedings closing both parties' cases where counsel was absent due to a technical hitch

Holding

The court allowed the application, setting aside the orders of 25th September 2023 and reopening both parties' cases on terms, including thrown away costs.

Reasoning

The court invoked Order 12 Rule 7 and the Shah v Mbogo line of discretion. While doubting counsel's candour, since the record showed no appearance at call over and unanswered calls, the court held that mistake of counsel should not be visited on the client and that the defendant should not be condemned unheard. It balanced this against the inconvenience and delay caused to the Respondent, who had testified and filed submissions, and conditioned the reopening on thrown away costs of Kshs. 50,000.

p. 5

Legal principles established

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  • The discretion to set aside ex parte proceedings is exercised to avoid injustice from accident, inadvertence or excusable mistake, but not to assist deliberate obstruction or delay.
  • Mistake of counsel should not be visited upon the client; the court may exercise its discretion to reopen a case so it is heard on its merits.

Court orders

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  1. 1.The proceedings, directions and orders issued on 25th September, 2023 and all subsequent directions and orders are hereby set aside.
  2. 2.The Plaintiff's case is hereby reopened for purposes of cross-examination by the Defendant.
  3. 3.The Defendant's case is hereby reopened.
  4. 4.The Defendant/Applicant shall pay to the Plaintiff/Respondent thrown away costs of Kshs. 50,000 before the date set for hearing.
  5. 5.The costs of this application shall be in the cause.

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Constitution of Kenya, 2010Articles 50(1) and 25(c)

Cases cited (8)

  • Shah v Mbogo & Another
    [1967] EA 116
  • Pithon Waweru Maina v Thuu Mugiria
    (1983) eKLR
  • Fredrick Maritim & 3 Others v Ekegoro Property Management Limited & Another
    [2021] eKLR
  • Timwood Products Limited v Karachiwalla (Nairobi) Limited
    [2016] eKLR
  • Japheth Pasi Kilonga & 8 Others v Mombasa Autocare Ltd
    [2015] eKLR
  • Mohamed Shally Sese (Shah Sese) v Fulson Company Ltd & Another
    [2006] eKLR
  • Patel v E.A Cargo Handling Services Ltd
    [1974] E.A 75
  • George Ndegwa Muiruri v Khilji Enterprises Limited, Dennis Mugambi Muthuri And Joseph Ngigi Kangethe
    HCCA No. E004 of 2023
Jurisdiction invoked
Inherent discretion under Order 12 Rule 7 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, "Kamunge v Koech (Enviromental and Land Originating Summons 10 of 2022) [2024] KEELC 4006 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4006/eng@2024-05-02

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