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ELCPartially AllowedNot stated in judgment· [2024] KEELC 4346 (KLR)

Catholic Diocese of Nakuru Registered Trustees v Letizi & another (Environment & Land Case 62 of 2020) [2024] KEELC 4346 (KLR)

Environment and Land Court
28 May 2024
MNMwangi Njoroge
974 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan land court reinstated a lawsuit dismissed after a lawyer missed a virtual hearing, because the lawyer had shown consistent effort to move the case forward.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 7th March 2024 seeking reinstatement of the Plaintiff's suit, which had been dismissed on 4th March 2024 for want of prosecution after counsel failed to log into a virtual mention. The application was brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 12 rule 7 and Order 51 rules 1 and 15 of the Civil Procedure Rules, 2010, supported by an affidavit and supplementary affidavit of Charles Kimani, counsel for the applicant. The application was canvassed by written submissions, only the plaintiff's having been filed. The court framed a single issue: whether the dismissal of 4th March 2024 should be set aside and the claim reinstated. Relying on Order 12 Rule 7 and Order 51 Rule 15, and on Shah v Mbogo, Joseph Ndirangu Munene v Peter Macharia Muriu and Patel v E.A Cargo Handling Services Ltd, the court held that the power to set aside ex-parte orders is discretionary and is exercised to avoid injustice from accident, inadvertence or excusable mistake. While finding that counsel's technical-hitch explanation was not sufficiently substantiated, the court noted the litigation history showing counsel had repeatedly sought hearing dates, including a letter of 2nd May 2023 and an email of 1st August 2023. In the interest of justice, the court allowed the application, reinstated the suit, directed filing of consolidated trial bundles within 21 days each, and fixed the main suit for hearing on 26th September 2024, with costs of the application to abide the outcome of the suit.

Key legal issues

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Whether the dismissal of the plaintiff's claim for want of prosecution should be set aside

Holding

Application allowed; dismissal set aside and claim reinstated despite the technical-hitch explanation being unsubstantiated, because the litigation history showed diligence

Reasoning

The court accepted that setting aside ex-parte orders is governed by Order 12 Rule 7 and Order 51 Rule 15 and is discretionary, aimed at avoiding injustice from accident, inadvertence or excusable mistake. Although the counsel's technical-hitch excuse was not sufficiently substantiated, the record showed counsel had repeatedly sought hearing dates (letters of 2/5/2023 and email of 1/8/2023). Balancing these factors, the court found it in the interest of justice to reinstate the suit so it could be determined on merit.

p. 3

Legal principles established

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  • The power to set aside ex-parte orders is discretionary and is exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake
  • A party who has demonstrated diligence in seeking a hearing date should be allowed to prosecute its case so it is determined on merit

Court orders

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  1. 1.The application dated 7/3/2024 is allowed; the orders of 4th March 2024 dismissing the Plaintiff's claim are set aside and the claim reinstated
  2. 2.Costs of the application shall abide the outcome of the suit
  3. 3.Parties to file a consolidated trial bundle duly indexed and paginated, the plaintiff within 21 days and the defendant within 21 days of service
  4. 4.The main suit to be heard on 26/9/2024

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure Rules, 2010Order 12 rule 7
  • Civil Procedure Rules, 2010Order 51 rules 1 and 15

Cases cited (3)

  • Shah v Mbogo & Another
    (1967) E.A. 93
  • Joseph Ndirangu Munene v Peter Macharia Muriu & another
    [2021] eKLR
  • Patel Vs E.A Cargo Handling Services Ltd
    (1974) EA 75
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 12 rule 7 and Order 51 rules 1 and 15 of the Civil Procedure Rules, 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, "Catholic Diocese of Nakuru Registered Trustees v Letizi & another (Environment & Land Case 62 of 2020) [2024] KEELC 4346 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4346/eng@2024-05-28

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