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ELCAllowedNot stated in the judgment· [2024] KEELC 6976 (KLR)

Mburu v Evans & 9 others (Environment & Land Case 154 of 2018) [2024] KEELC 6976 (KLR)

Environment and Land Court
16 October 2024
AOAntony O. Ombwayo
1,165 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a land suit dismissed because the lawyer appeared in the wrong courtroom, confirming clients shouldn't lose cases over counsel's honest mistakes.

What this practically means

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Executive summary

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The plaintiff, Mercy Wanjiru Mburu, applied for reinstatement of her suit, which was dismissed for non-attendance on 9th February 2023 under Order 12 Rule 3 of the Civil Procedure Rules, 2010. She explained that her suit, filed on 19th April 2018, had passed through several firms of advocates without proper instructions, and that her advocates on record, M/S Munene, Chege & Co Advocates, were misadvised by registry staff that the matter was before ELC Court 2 before Hon. Mwangi Njoroge, when it was actually before ELC Court 3. By the time the error was realised, the matter had been called out and dismissed. The 8th Defendant opposed the application through grounds of opposition, arguing that the plaintiff orchestrated her own lethargy through numerous advocates, that both plaintiff and counsel were absent despite knowledge of the hearing, and that reinstatement would prejudice defendants who were ready to proceed. The court found that the defendant filed grounds of opposition and not a replying affidavit, leaving the plaintiff's affidavit facts uncontroverted. Relying on Article 159 of the Constitution and the discretion principles in Shah v Mbogo as echoed in Bilha Ngonyo Isaac v Kembu Farm Ltd, the court held that counsel's mistake in appearing before the wrong court was excusable and should not visit the client with dismissal. The court allowed the application, reinstated the suit, and gave the plaintiff a chance to present her case.

Key legal issues

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01

Reinstatement of a suit dismissed for non-attendance under Order 12 Rule 3

Holding

The dismissal for non-attendance was set aside and the suit reinstated because the failure to attend was due to counsel's mistake, and the discretion under Article 159 was exercised to favour hearing on the merits

Reasoning

The court found the plaintiff's advocate appeared before ELC Court 2 while the matter was before ELC Court 3, hence the dismissal. The defendant filed grounds of opposition only, leaving the plaintiff's affidavit facts uncontroverted. Applying Shah v Mbogo as echoed in Bilha Ngonyo Isaac, the discretion exists to avoid injustice from inadvertence or excusable mistake. Weighing Article 159's twin demands of justice without delay and fairness to both parties, the court found the mistake excusable and allowed reinstatement.

p. 3

Legal principles established

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  • A mistake by counsel, including appearing in or logging into the wrong court, should not cause a matter to be determined, as discretion is exercised to avoid injustice from inadvertence or excusable mistake

Court orders

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  1. 1.The application to reinstate the suit is allowed
  2. 2.The plaintiff is given a chance to present her case

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure Rules, 2010Order 12 Rule 3 and 6

Cases cited (2)

  • Bilha Ngonyo Isaac vs. Kembu Farm Ltd & another & another
    [2018] eKLR
  • Shah vs. Mbogo & Another
    (1967) EA 116
Jurisdiction invoked
Inherent discretion to reinstate a suit dismissed for non-attendance, guided by Article 159 of the Constitution of Kenya 2010 and Order 12 Rule 3 of the Civil Procedure Rules, 2010

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, "Mburu v Evans & 9 others (Environment & Land Case 154 of 2018) [2024] KEELC 6976 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6976/eng@2024-10-16

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