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ELCPartially AllowedApplication dated 6 August 2021 (suit dismissed 21 July 2021)· [2024] KEELC 6002 (KLR)

Omoi & 4 others v Mogeni (Environment & Land Case 343 of 2016) [2024] KEELC 6002 (KLR)

Environment and Land Court
19 September 2024
MSMunyao Sila
1,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a dismissed land suit, but punished the plaintiffs' lawyer with Kshs 50,000 costs for skipping a hearing after the court changed the date.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Kisii (Munyao Sila J) on an application dated 6 August 2021 by the plaintiffs seeking reinstatement of their suit, which had been dismissed for non-attendance on 21 July 2021. Counsel for the plaintiffs, Mr. Masese, explained that the court had earlier fixed hearing for 22 September 2021, that he had advised his clients of that date, and that service on his office of a hearing notice for the substituted date of 21 July 2021 was 'illogical'. The defendant, an elderly and bedridden woman, opposed the application through a replying affidavit, showing that the matter had been in court since 2016, that the hearing date was validly rescheduled and notice duly served, and that the plaintiffs appeared to have lost interest. The court reviewed the record showing repeated non-appearance by the plaintiffs and held that a court has power both to give and to change hearing dates; control of the diary is a mandate of the court, and counsel and parties must adjust their diaries when a date changes. It rejected the excuse advanced and held that service of the hearing notice was the logical and proper course, and that it was counsel's duty to attend. Although the court had every reason to decline the application, it reinstated the plaintiffs' land suit out of its wide discretion under Section 3A of the Civil Procedure Act, in the interest of hearing the case on merits, but conditional upon the plaintiffs paying thrown away punitive costs of Kshs 50,000/= to the defendant within 14 days, failing which the dismissal would stand and the respondent would have the costs of the application. Orders were delivered on 19 September 2024.

Key legal issues

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01

Whether a previously given hearing date is a good reason for non-attendance after the court changes the date

Holding

No. A court has the power to give and to change hearing dates, and it is the duty of counsel and parties to adjust their diaries and attend on the new date; the dismissal for non-attendance was justified.

Reasoning

The court held that control of the diary and scheduling is a mandate of the court. If parties could ignore changed dates because of earlier dates fixed, courts would lose control over scheduling and chaos would ensue in the administration of justice. Counsel was obliged to appear on the new date and not take the court for granted, and the court rightly declined to adjourn.

p. 2
02

Whether reinstatement would nonetheless be warranted despite absence of good reason

Holding

Yes, in the court's discretion under Section 3A of the Civil Procedure Act, because the case relates to land and hearing on merits would allow proper closure, subject to payment of thrown away costs.

Reasoning

Although the court had every reason to decline the application, it observed that the suit relates to land and that proper closure is best achieved by hearing the case on merits. Reinstatement was therefore granted expressly out of the court's wide discretionary power under Section 3A, and not because of the reasons advanced by counsel, and was made conditional on thrown away costs.

p. 3

Legal principles established

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  • Control of the court diary and the scheduling and rescheduling of hearing dates is a mandate and power of the court; parties and counsel must adjust their diaries when a date is changed
  • Service of a hearing notice for a date given by the court is a logical and reasonable action, not a basis for complaint by the counsel served

Court orders

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  1. 1.The suit of the plaintiffs dismissed on 21 July 2021 is reinstated, out of the court's discretion under Section 3A of the Civil Procedure Act
  2. 2.Reinstatement is conditional upon the plaintiffs paying thrown away punitive costs of Kshs 50,000/= to the defendant within 14 days
  3. 3.If the costs are not paid within the stipulated time, the case shall stand dismissed pursuant to the order of 21 July 2021 and the respondent will have the costs of the application
  4. 4.If there is compliance, the costs paid will suffice as the costs of the application to the respondent
Jurisdiction invoked
Inherent jurisdiction under Section 3A of the Civil Procedure Act, Cap 21, Laws of Kenya

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, "Omoi & 4 others v Mogeni (Environment & Land Case 343 of 2016) [2024] KEELC 6002 (KLR)", Case Analysis (2024). Application dated 6 August 2021 (suit dismissed 21 July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6002/eng@2024-09-19

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