Oyieko v Henry & 4 others (Environment & Land Case 48 of 2019) [2024] KEELC 4509 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave should be granted for Sheth and Wathigo Advocates to come on record
Leave granted; no party objected and the right to representation is enshrined in the Constitution.
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.
Whether the dismissal order of 28th July 2022 and the ex parte counterclaim proceedings should be set aside
The dismissal of the Plaintiff's suit stands, but the ex parte counterclaim proceedings were set aside to allow the Plaintiff to participate.
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.
Legal principles established
#- 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
#- 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.The Plaintiff shall within 14 days of the date hereof file a response to the counterclaim, list of documents and witness statements
- 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.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.The order of 28th July, 2022 dismissing the Plaintiff's suit for non-attendance and/or want of prosecution stands
- 6.The cost of this application shall abide the outcome of the counterclaim
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.