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ELCAllowedLand Case 62 of 2019· [2025] KEELC 1105 (KLR)

Mtile & 2 others v Mwamburi & another (Land Case 62 of 2019) [2025] KEELC 1105 (KLR)

Environment and Land Court
7 March 2025
LNL. L. Naikuni
3,239 words in judgment
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The bottom line

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Kenya's Land Court reinstated a dismissed land case, ruling a lawyer's honest mix-up between virtual and physical court shouldn't cost clients their day in court.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa (Hon. Mr. Justice L. L. Naikuni) ruled on a Notice of Motion dated 4th November 2024 by the three Plaintiffs seeking to set aside the orders and proceedings of 4th November 2024, when their suit was dismissed for non-attendance, and to have the matter fixed for hearing afresh. The application was anchored on Sections 3, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. Counsel Paul W. Magolo deposed that he attended the virtual Teams proceedings, took a 12:00pm time indication, logged back in with four witnesses, but the matter was disposed of in physical court in his absence. The 1st Defendant opposed, contending that counsel knew land matters were heard in open court and that no justifiable reason for non-attendance had been given. The court framed three issues: reasonable explanation for non-attendance, the basis for setting aside the dismissal, and costs. Applying Order 12 Rule 3 and the inherent jurisdiction under Section 3A, and guided by Shah v Mbogo, Rawal v Mombasa Hardware, Belinda Muras, Phillip Chemwolo and Martha Karua, the court found the Applicants' account probable, held that a bona fide mistake is sufficient excuse and counsel's errors should not be visited on the client, and reinstated the suit in the interest of substantive justice under Articles 50 and 159(2) of the Constitution. The application was allowed in its entirety; the Plaintiffs' Advocates were to pay thrown away costs of Kshs. 10,000 each to the 1st and 2nd Defendants' Advocates, with the costs of the application in the cause, and the matter was set for mention on 24th March 2025 before Hon. Justice Olola.

Key legal issues

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01

Reasonable explanation for non-attendance

Holding

The Applicants gave a probable and truthful explanation; counsel logged into the virtual platform but the matter proceeded in physical court

Reasoning

The court accepted counsel's account that he was in the Teams virtual proceedings at 9:00am, took a 12:00pm time indication, logged back at 11:50am with witnesses, and only discovered the matter had been handled in physical court when he went to find out why he was not admitted. That was a bona fide mistake amounting to sufficient cause under Order 12 Rule 3(1), and counsel's error should not be visited on the client.

p. 5
02

Discretion to set aside dismissal and reinstate suit

Holding

The court exercised its discretion to set aside the dismissal and reinstate the suit, subject to thrown away costs

Reasoning

Resting on the inherent power under Section 3A of the Civil Procedure Act and guided by Shah v Mbogo, Rawal v Mombasa Hardware, Belinda Muras, Phillip Chemwolo and Martha Karua, the court held the overriding objective of Articles 50 and 159(2) and Sections 1A and 1B required a fair hearing; any inconvenience to respondents could be remedied by thrown away costs, and the land dispute remained fit for trial on the merits.

p. 6

Legal principles established

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  • A bona fide mistake that is not unreasonable is sufficient excuse under Order 12 Rule 3(1) and counsel's mistakes should not be visited on the client
  • The discretion to set aside an ex parte dismissal exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction

Court orders

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  1. 1.The Notice of Motion application dated 4th November, 2024 is allowed in its entirety
  2. 2.The orders and proceedings of 4th November 2024 dismissing the Plaintiffs' case are set aside to enable the Plaintiffs to present their case
  3. 3.The Plaintiffs' Advocates to pay thrown away costs of Kshs. 10,000.00 each to the 1st and 2nd Defendants' Advocates respectively before the next Court session
  4. 4.Matter to be fixed for mention on 24th March, 2025 to fix a fresh hearing date before Hon. Justice Olola
  5. 5.Costs of the application to be in cause

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 63(e), 1A, 1B, 27(1)
  • Civil Procedure Rules, 2010Order 12 Rules 3, 6, 7; Order 10 Rule 11; Order 17 Rules 1, 2 & 3; Order 51 Rules 1 & 15
  • Constitution of Kenya, 2010Articles 50, 159(2)(b)

Cases cited (8)

  • Shah – Versus - Mbogo & Another
    [1967] 6A U7
  • Rawal while – Versus - Mombasa Hardware Limited
    [1968] EA 392
  • Belinda Muras & 6 Others – Versus - Amos Wainaina
    [1978] KLR
  • Phillip Chemwolo & Another – Versus - Augustine Kubede
    [1982-88] KLR 103
  • Martha Wangari Karua – Versus - IEBC
    Nyeri Civil Appeal No.1 of 2017
  • Harun Mutwiri – Versus - Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat – Versus - Attorney General & Another
    [2017] eKLR
Jurisdiction invoked
Sections 3, 3A & 63(e) of the Civil Procedure Act and Order 51 Rule 1 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, "Mtile & 2 others v Mwamburi & another (Land Case 62 of 2019) [2025] KEELC 1105 (KLR)", Case Analysis (2025). Land Case 62 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1105/eng@2025-03-07

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