Kimeto (Suing as the Legal Representative of the Estate of Daniel Kikwai Chepkwony alias Kikwai Arap Chepkwony - Deceased) v Korir & 4 others (Environment & Land Case 3 of 2020) [2024] KEELC 6220 (KLR)

Environment and Land Court

26 September 2024

LOL. A. Omollo

2,468 words in judgment

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The bottom line

Kenya's Environment and Land Court reinstated a land suit dismissed after a virtual-hearing mix-up, confirming courts will forgive honest scheduling mistakes.

What this practically means

Executive summary

This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined the Plaintiff/Applicant's Notice of Motion dated 14th May 2024, brought under Sections 3 and 3A of the Civil Procedure Act and Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, seeking to set aside orders of the same date dismissing the suit for non-attendance and to reinstate the suit. The underlying suit, commenced by Plaint dated 16th January 2020 and amended on 1st August 2023, concerns land parcel Kericho/Ndarawetta/1048 and seeks, among other reliefs, a permanent injunction, declarations of nullity of sale for want of a grant under Section 45 of the Law of Succession Act, a declaration of trespass, general damages, mesne profits and eviction. The Defendants entered appearance but never filed a defence. On 14th May 2024 the suit was dismissed when counsel and the plaintiff, who had appeared virtually at 9:00 am and were told the hearing would proceed at 10:30 am, logged in from Nairobi and Bomet respectively expecting a virtual hearing and were dismissed at 11:15 am without physical attendance. Counsel explained the misapprehension as inadvertent. The Defendants filed no response; the Plaintiff filed no submissions. Applying Order 12 Rules 1 and 7 and the principles in Martin L Barasa v Giza Systems Smart Solutions Ltd, Shah v Mbogo and CMC Holdings Limited v Nzioki, the court found the non-attendance clearly inadvertent and noted the application was filed the same day as the dismissal. The application was allowed: the dismissal orders were set aside, the suit reinstated, the Plaintiff to set the suit down for hearing within 7 days, with costs of the application to abide the outcome of the suit.

Key legal issues

Whether the dismissal of the suit for non-attendance should be set aside and the suit reinstated

Holding

Application allowed; dismissal set aside and suit reinstated because non-attendance was inadvertent.

Reasoning

Order 12 Rule 7 empowers the court to set aside a dismissal upon such terms as may be just. Drawing on Martin L Barasa v Giza Systems Smart Solutions Ltd and the Shah v Mbogo principles, the court held the discretion exists to avoid injustice from accident, inadvertence or excusable mistake. Counsel and plaintiff logged in virtually believing the hearing would be virtual; the failure to attend open court was thus inadvertent, and the application was filed the same day as the dismissal, showing desirability to prosecute the suit.

p. 6

Legal principles established

The Court has discretion to set aside ex parte orders to avoid injustice resulting from accident, error or inadvertence.

Court orders

1.The orders issued by this Honourable Court on 14th May, 2024 dismissing the suit herein for non-attendance are hereby set aside
2.The suit is hereby reinstated
3.The Plaintiff shall set up the suit for hearing within 7 days of the date hereof
4.The costs of this application shall abide the outcome of this suit

Authorities

Legislation

Civil Procedure ActSections 3 & 3A
Civil Procedure RulesOrder 12 Rule 1
Civil Procedure RulesOrder 12 Rule 7
Civil Procedure RulesOrder 51 Rule 1
Law of Succession ActSection 45 (referred to in the Plaint)

Cases cited (3)

Martin L Barasa v Giza Systems Smart Solutions Ltd
[2022] eKLR
Shah v Mbogo
[1967] EA 116
CMC Holdings Limited v Nzioki
[2004] 1 KLR 173

Jurisdiction invoked: Sections 3 & 3A of the Civil Procedure Act, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kimeto (Suing as the Legal Representative of the Estate of Daniel Kikwai Chepkwony alias Kikwai Arap Chepkwony - Deceased) v Korir & 4 others (Environment & Land Case 3 of 2020) [2024] KEELC 6220 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6220/eng@2024-09-26

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