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ELCPartially Allowed· [2024] KEELC 4509 (KLR)

Oyieko v Henry & 4 others (Environment & Land Case 48 of 2019) [2024] KEELC 4509 (KLR)

Environment and Land Court
6 June 2024
8,650 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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A Kenyan land court allowed a new lawyer to take over a case but refused to revive the landowner's dismissed suit, blaming years of inaction on the owner herself.

What this practically means

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Executive summary

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This ruling by L. A. Omollo, J of the Environment and Land Court at Kericho determined the Plaintiff/Applicant's Notice of Motion dated 7th November, 2023 seeking leave for Sheth and Wathigo Advocates to come on record, setting aside the order of 28th July, 2022 dismissing her suit for want of prosecution, and reinstatement of the suit and the counterclaim which had proceeded ex parte. The suit concerned parcels of land in Nakuru Municipality which the Plaintiff claimed she occupied under a donation from Kanji Valji Patel and by adverse possession. The Defendants opposed, alleging indolence, abuse of process after three failed reinstatement applications, and that an adverse possession claim cannot be brought by plaint nor be pleaded alongside a fraud challenge to the same title. The court framed two issues: whether leave should be granted to the incoming firm, and whether the dismissal order and ex parte counterclaim proceedings should be set aside. Relying on Order 12 Rule 7 and the Shah v Mbogo discretion, the court held that the Plaintiff had squandered several opportunities to prosecute her claim and that suits belong to the parties, not counsel; the dismissal of the plaintiff's suit therefore stands. However, in the interest of justice, the court reopened the ex parte counterclaim proceedings of the 2nd and 3rd Defendants, granting the Plaintiff 14 days to file a response to the counterclaim and directing that the Defendants' case be reopened for cross-examination and additional evidence, subject to thrown away costs of Kshs. 100,000. The application was allowed in part; costs of the application to abide the outcome of the counterclaim.

Key legal issues

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01

Whether leave should be granted for Sheth and Wathigo Advocates to come on record

Holding

Leave granted; no party objected and the right to representation is enshrined in the Constitution.

Reasoning

A consent was filed indicating the outgoing firm had no objection, but the court stressed that the grant of leave remains a judicial discretion. None of the parties objected to the grant of leave, and the right to representation is constitutionally enshrined, so it was in the interest of justice to grant leave to the incoming firm to come on record for the Applicant.

p. 12
02

Whether the dismissal order of 28th July 2022 and the ex parte counterclaim proceedings should be set aside

Holding

The dismissal of the Plaintiff's suit stands, but the ex parte counterclaim proceedings were set aside to allow the Plaintiff to participate.

Reasoning

Applying Order 12 Rule 7 and the Shah v Mbogo discretion, the court held the Plaintiff had squandered repeated opportunities to prosecute her claim, so the dismissal would not be disturbed. However, in the interest of justice, and given that the counterclaim had proceeded ex parte with one witness heard, the court exercised discretion in favour of the Plaintiff in respect of the counterclaim, reopening the 2nd and 3rd Defendants' case subject to thrown away costs.

p. 16

Legal principles established

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  • The discretion to set aside a dismissal for want of prosecution is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the cause of justice.
  • The law requires only a reasonable opportunity to be heard; once given and not utilised, the party can be heard only on why the opportunity was not utilised.
  • Suits belong to the parties, not counsel, and blaming counsel does not exonerate a litigant from the duty of ensuring the suit is prosecuted to conclusion.
  • Leave for an advocate to come on record after judgment is a discretion of the court and cannot be conferred by consent of the parties.

Court orders

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  1. 1.Leave granted to the firm of Sheth and Wathigo Advocates to come on record for the Plaintiff in place of the firm of Geoffrey Otieno & Company Advocates and/or Osero & Company Advocates
  2. 2.The Plaintiff shall within 14 days of the date hereof file a response to the counterclaim, list of documents and witness statements
  3. 3.The 2nd and 3rd Defendant's case is re-opened for purposes of cross-examination by the Plaintiff; the 2nd and 3rd Defendants granted leave to call additional witnesses and file additional documents if necessary
  4. 4.The Plaintiff shall pay to the 2nd and 3rd Defendant thrown away costs of Kshs. 100,000 within 14 days of the date hereof
  5. 5.The order of 28th July, 2022 dismissing the Plaintiff's suit for non-attendance and/or want of prosecution stands
  6. 6.The cost of this application shall abide the outcome of the counterclaim

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure RulesOrder 37 rule 7
  • Civil Procedure Rules 2010Order 5 Rule 1(6)
  • Civil Procedure ActSections 1, 1A, 3A and 7
  • Civil Procedure ActSection 27
  • Constitution of Kenya 2010Article 159(2)(d), Article 50
  • Limitation of Actions ActSections 7, 13 and 38(1)
  • Land Registration Act, No 3 of 2012Sections 26 and 28

Cases cited (30)

  • Rose Akello Otieno v Joseph Odote & another
    [2022] eKLR
  • Stephen Mwangi Gatunge v Edwin Onesmus Wanjau
    [2022] eKLR
  • Gold Lida Limited v Nic Bank Limited & 2 others
    [2018] eKLR
  • Pius Mulwa Masai (Suing as legal representative of the Estate of Masai Kabolelya) v Nzembi Musili & 5 others
    [2021] eKLR
  • Geoffrey Omboko Awuor v Kenya Power & Lightning
    [2021] eKLR
  • Gilbert K Kabage vs Richard M Mutungi
    Nakuru High Court No 114 of 2016 (O.S)
  • Utalii Transport Co Ltd and 3 others vs N.I.C Bank and another
    [2014] eKLR
  • Peter Ngome vs Plantex Company Limited
    (1983) eKLR
  • Martin L. Barasa vs Giza Systems Smart Solutions Limited
    (2022) eKLR
  • Savings and Loans Limited vs Susan Wanjiru Muritu
    Nairobi (Milimani) HCCS No 397 of 2002
  • Edney Adaka Ismail vs Equity Bank Limited
    [2014] eKLR
  • Wellington Lusweti Barasa & 75 others vs Lands Limited & another
    [2014] eKLR
  • Peter Lavatsa Kabwoya vs Nicholas G. Karira & another
    [2021] eKLR
  • Silvester K. Kaitany vs Nyayo Tea Zones Development Corporation & another: National Land Commission & another (Interested Parties)
    [2021]
  • Vijay Morjaria vs Nansigh Madhusingh Darbar & Another
    (2000) eKLR (Civil Appeal No 106 of 2000)
  • Wasui vs Musumba
    (2002) KLR 396
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    [2015] eKLR
  • Maweu vs Liu Ranching and Farming Cooperative Society
    [1985] KLR 430
  • Njuguna Ndatho vs Masai Ituma & 2 others
    Civil Appeal No 23 of 1999
  • Joseph Ochieng T/A Aquiline Agencies vs First National Bank of Chicago
  • Kassam vs Bank of Baroda
    [2002] 1KLR 294
  • Lawrence Owino Omondi vs Kenneth Inea Muyera
    (2017) eKLR
  • John Mulwa Kanga'atu vs Pan African Insurance Co. Ltd
    [2015] eKLR
  • Stanley Kaunga Nkarichia vs Meru Teachers College & another
    [2016] eKLR
  • Patrick Ndegwa Munyua vs Benjamin Kiiru Mwangi & another
    [2020] eKLR
  • Shah vs Mbogo
    (1979) EA 116
  • John Mukuha Mburu v Charles Mwenga Mburu
    [2019] eKLR
  • Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji
    Civil Application No. Nai. 179 of 1998
  • Thathini Development Company Limited v Mombasa Water & Sewerage Company & another
    [2022] eKLR
  • Investment Limited –Versus- G4s Security Services Limited
    (2015) eKLR
Jurisdiction invoked
Order 9 Rule 9 and Order 12 Rule 7 of the Civil Procedure Rules; Sections 1, 1A, 3A and 7 of the Civil Procedure Act; Article 159(2)(d) of the Constitution

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, "Oyieko v Henry & 4 others (Environment & Land Case 48 of 2019) [2024] KEELC 4509 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4509/eng@2024-06-06

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