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ELCAllowedNot stated in the judgment (Petition dated 1st July 2022)· [2024] KEELC 5523 (KLR)

Maina & 2 others (Suing as the Chairman, Secretary and Treasurer of Kamahuha Nyati Plot Owners Association) v County Government of Muranga & 2 others (Environment & Land Petition E004 of 2022) [2024] KEELC 5523 (KLR)

Environment and Land Court of Kenya
18 July 2024
3,139 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reinstated a petition dismissed after counsel missed a virtual hearing, ruling lawyers' mistakes should not punish clients.

What this practically means

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Executive summary

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The Petitioner/Applicant filed a Notice of Motion dated 8th December 2023 under Section 3A of the Civil Procedure Act and Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, seeking setting aside and variation of the court's order of 5th December 2023 dismissing the Petition dated 1st July 2022 for want of prosecution, and reinstatement of the suit. The dismissal followed a Notice to Show Cause issued on the court's own motion under Order 17 Rule 2 after no step had been taken for over a year following the 1st Respondent's Reply filed on 5th October 2022. On the hearing date, no party attended; counsel for the Petitioner, Jerusha Kabata, explained that she had technical difficulties joining the virtual court and only managed to log in after the matter had been called out and dismissed. The 1st Respondent opposed, arguing the application was defective and that the Petitioners were indolent and had lost interest. The court framed one issue: whether the Applicants were entitled to the orders sought. It found the application was filed only three days after dismissal, hence without delay; the counsel's log-in difficulties were a plausible explanation and she made efforts to attend; and mistakes of counsel should not be visited on the client, applying Ivita v Kyumbu, Shah v Mbogo, Mutinda Musila Malua and CFC Stanbic. The court held the application merited, allowed it entirely, reinstated the Petition, directed the Petitioners to set it down for hearing within 60 days failing which it would stand dismissed, and ordered costs in the cause. Judgment delivered virtually at Murang'a on 18th July 2024 by L. Gacheru, Judge.

Key legal issues

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01

Whether the dismissal of the Petition for want of prosecution should be set aside and the suit reinstated

Holding

Yes - the application for reinstatement was merited and was allowed entirely

Reasoning

The court applied Order 12 Rule 7 and Section 3A of the Civil Procedure Act. The application was filed three days after dismissal, so there was no delay. Counsel's failure to attend the virtual NTSC was explained as technical/log-in difficulties, and she did join after the matter had been called out, showing effort. Following Mutinda Musila Malua and CFC Stanbic, mistakes of counsel should not be visited on the client, and the discretion under Shah v Mbogo is exercised to avoid injustice. The respondent showed no prejudice.

p. 6
02

Whether the court had jurisdiction to reinstate a suit dismissed after a Notice to Show Cause under Order 17 Rule 2

Holding

Yes - the dismissal was done ex parte and Order 12 Rule 7 together with Order 51 Rule 15 and Section 3A empowered the court to set it aside

Reasoning

The NTSC was properly issued under Order 17 Rule 2 because no step had been taken for over a year after the 1st Respondent's Reply. On the date of the NTSC no party attended and the court dismissed the Petition. Because that dismissal was made in the absence of the parties, it was ex parte, and Order 51 Rule 15 allows the court to set aside orders made ex parte; Order 12 Rule 7 allows setting aside a dismissal upon just terms.

p. 4

Legal principles established

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  • Mistakes of counsel should not be visited on the client.
  • An application for reinstatement made promptly after dismissal shows no delay.
  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay (Ivita v Kyumbu).

Court orders

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  1. 1.The Notice of Motion Application dated 8th December 2023 is allowed entirely
  2. 2.The orders dismissing the Petition dated 1st July 2022 are set aside and the Petition is reinstated for hearing and disposal
  3. 3.The Petitioners/Applicants are directed to set the Petition down for hearing within 60 days, failing which the Petition shall stand dismissed unless otherwise directed by the court
  4. 4.Costs of the Application to be in the cause

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Act (Cap 21)Sections 1A and 1B
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 51 Rule 15

Cases cited (8)

  • Mutinda Musila Malua vs Ngunga Yatta Deputy County Commissioner, Kitui West Sub County & 2 Others
    (2021) eKLR
  • Catherine Kigasia Kivai v Ernest Ogesi Kivai & 4 others
    [2021] eKLR
  • Ivita vs. Kyumbu
    [1984] KLR 441
  • Bilha Ngonyo Isaac vs. Kembu Farm Ltd & another & another
    [2018] eKLR
  • Shah vs. Mbogo & Another
    (1967) EA 116
  • Mobile Kitale Service Station vs. Mobil Oil Kenya Limited & another
    [2004] eKLR
  • CFC Stanbic Limited versus John Maina Githaiga & another
    [2013] eKLR
  • LEE G Muthoga V Habib Zurich Finance (k) Ltd & Another
    Civil Application No. NAI 236 OF 2009
Jurisdiction invoked
Section 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rule 1 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, "Maina & 2 others (Suing as the Chairman, Secretary and Treasurer of Kamahuha Nyati Plot Owners Association) v County Government of Muranga & 2 others (Environment & Land Petition E004 of 2022) [2024] KEELC 5523 (KLR)", Case Analysis (2024). Not stated in the judgment (Petition dated 1st July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5523/eng@2024-07-18

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