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ELCAllowedNot stated in the judgment

Golden Century Limited v Josef (Environment and Land Miscellaneous Application E224 of 2024) [2025] KEELC 688 (KLR)

Environment and Land Court
20 February 2025
MMM.D. Mwangi
1,215 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 Kajiado court reinstated a company's dismissed land case because its lawyer missed the hearing, but ordered Kshs. 20,000 paid to the other side.

What this practically means

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Executive summary

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The Applicant company, by an application dated 7th November 2024 under Order 12 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, sought to set aside a dismissal order of 5th November 2024 and reinstate its earlier Notice of Motion dated 17th October 2024, which had been dismissed for non-attendance on the hearing date. The Applicant attributed its non-attendance to an oversight by its advocates, whose internal circulation of the hearing date failed, and asserted that its application raised triable issues concerning the Respondent's alleged unlawful occupation of a suit apartment for non-completion of payment and non-payment of licensee fees. The Respondent opposed, contending that the Applicant had handled the matter lackadaisically, had itself served the hearing notice, and had not provided credible or sufficient reasons for non-attendance, and that reinstatement would prejudice him with delay, expense and anxiety. After written submissions, M.D. Mwangi J applied Order 12 Rule 7, guided by the Court of Appeal decisions in Patriotic Guards Ltd v James Kipchirchir Sambu on judicious exercise of discretion and Belinda Murai & 9 others v Amos Wainaina on advocate's blunders. Holding that the purpose of the discretion is to do real and substantial justice, and noting that the Applicant filed its reinstatement application only two days after the dismissal, the court conditionally allowed the application: it set aside the dismissal order of 5th November 2024, reinstated the application dated 17th October 2024 for hearing on its merits, and directed the Applicant to pay the Respondent thrown away costs of Kshs. 20,000/= within 14 days as the condition for reinstatement. Delivered virtually at Kajiado on 20th February 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant has shown sufficient reason for the court to exercise its discretion to set aside the dismissal order of 5th November 2024 and reinstate its application dated 17th October 2024
  2. 2.Whether the mistake of the Applicant's advocates in failing to attend court should be visited upon the client
  3. 3.On what conditions, if any, reinstatement should be granted

Key legal issues

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01

Whether the court should set aside the dismissal of the Applicant's application for non-attendance and reinstate it

Holding

Yes. The court conditionally allowed the application, setting aside the dismissal order of 5th November 2024 and reinstating the application dated 17th October 2024 for hearing on the merits, on condition that the Applicant pays thrown away costs of Kshs. 20,000/= within 14 days.

Reasoning

Order 12 Rule 7 confers a discretion to set aside or vary orders as the court deems just. Guided by Patriotic Guards Ltd v Sambu on judicious exercise of discretion and Belinda Murai v Amos Wainaina on advocate's mistakes, the court held that the purpose of the discretion is to do real and substantial justice. The Applicant filed the reinstatement application within two days of the dismissal, demonstrating diligence and good faith, and offered throw away costs, so reinstatement on terms served the interests of justice.

p. 3

Legal principles established

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  • A court's discretion to set aside or vary its orders must be exercised judiciously, upon legal principles and in the circumstances of each case, with a view to doing real and substantial justice to the parties.
  • A mistake by an advocate, even a blunder, should not ordinarily close the door of justice against the client where the interests of justice dictate rectification.
  • Prompt action (filing the reinstatement application two days after dismissal) demonstrates the diligence and good faith required for setting aside a dismissal for non-attendance.

Court orders

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  1. 1.The dismissal order of 5th November 2024 is set aside
  2. 2.The Notice of Motion application dated 17th October 2024 is reinstated for hearing and determination on its merits
  3. 3.The Applicant to pay thrown away costs of Kshs. 20,000/= to the Respondent within 14 days as the condition for reinstatement of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (inherent jurisdiction to set aside or vary orders as deemed just)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I am persuaded that it is in the interests of justice to set aside the dismissal order of 5th November 2024 and reinstate the Notice of Motion application dated 17th October 2024 for hearing and determination on its merits.
p. 3Reinstatement of dismissed application - interests of justice
I direct that the Applicant pays thrown away costs of Kshs. 20,000/= to the Respondent in the next 14 days as the condition for reinstatement of the application.
p. 3Final orders - conditional reinstatement with thrown away costs
It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes.
p. 2Judicial discretion - Patriotic Guards Ltd v Sambu
The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better.
p. 3Advocate's mistake - Belinda Murai v Amos Wainaina
It is so ordered
p. 3Disposition

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, "Golden Century Limited v Josef (Environment and Land Miscellaneous Application E224 of 2024) [2025] KEELC 688 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/688/eng@2025-02-20

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