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ELCAllowedNot stated· [2024] KEELC 7001 (KLR)

Mwangi v Kibugu & another (Environment & Land Case 303 of 2018) [2024] KEELC 7001 (KLR)

Environment and Land Court
16 September 2024
AOANTONY O. OMBWAYO
411 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a land suit dismissed after a technical glitch stopped the lawyer's virtual hearing connection.

What this practically means

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Executive summary

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This was a ruling on an application by the plaintiff seeking review and/or setting aside of an order made on 9th April 2024 dismissing the plaintiff's suit, together with reinstatement of the suit for hearing on merit. The dismissal arose from a virtual court appearance: the plaintiff's advocate, Ms. Teresia Muthua, logged in at about 8.30 a.m., having travelled from Nairobi, but when the matter was called out at about 8.40 a.m. a brief power interruption in the gadget she was using prevented her from addressing the court, and the matter was dismissed for non-attendance. She promptly went to open court and confirmed the dismissal from the Court Assistant. The plaintiff filed a supplementary affidavit confirming that he had arrived at the Environment and Land Court No. 1 courtroom at 8 a.m., saw his advocate logged in, but could not hear her voice as her line had dropped, and later learned the case had been dismissed. The application was unopposed. The court, Hon. Justice Antony O. Ombwayo, found that the applicant had demonstrated that the failure to attend was caused by hardship or inadvertence due to the interruption in counsel's gadget. The application was allowed; the main suit was set down for hearing on 25th November 2024, and the plaintiff was directed to serve. The ruling was signed and delivered electronically on 16th September 2024 at Nakuru.

Key legal issues

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01

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

Holding

The dismissal was set aside because counsel's failure to address the court resulted from a brief power interruption in her gadget, constituting inadvertence rather than wilful default.

Reasoning

Counsel had logged in for the virtual hearing and was present when the matter was called at 8.40 a.m., but a brief interruption in the gadget prevented her from addressing the court, leading to dismissal for non-attendance. The plaintiff confirmed he attended the courtroom. The court found this amounted to hardship or inadvertence and, in the interest of justice, allowed reinstatement of the suit for hearing on merit.

p. 2

Legal principles established

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  • A dismissal for non-attendance may be set aside where the failure to attend was caused by hardship or inadvertence

Court orders

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  1. 1.The order of 9th April 2024 dismissing the plaintiff's suit is reviewed and/or set aside and the application is allowed
  2. 2.Hearing of the main suit on 25th November 2024
  3. 3.The plaintiff to serve
Jurisdiction invoked
Inherent review jurisdiction over dismissal for non-attendance (application to review/set aside order of 9th April 2024)

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, "Mwangi v Kibugu & another (Environment & Land Case 303 of 2018) [2024] KEELC 7001 (KLR)", Case Analysis (2024). Not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7001/eng@2024-09-16

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