Murphy Chemicals E.A Limited v Hasbah Company Limited & 7 others [2019] KEELRC 2 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated a dismissed land suit, saying genuine mistakes deserve a second chance, but imposed a strict six-month hearing deadline and awarded costs against the plaintiff.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff made out reasonable grounds for reinstatement of a suit dismissed for non-attendance
The suit was reinstated in the interest of justice, conditional on being fixed for hearing within six months
The court reviewed its record and found adjournments had been granted at the instance of both sides. Although the Plaintiff gave a contradictory account of why its witness was absent on 19/3/2019, the Defendants did not demonstrate any prejudice beyond arguing the matter was old, having been filed more than seven years earlier. Weighing these factors, the discretion under Order 12 Rule 7 was exercised to reinstate the suit on conditions protecting the Defendants from further delay.
Whether the suit ought to have been dismissed under Order 17 Rule 4 instead of Order 12 of the Civil Procedure Rules
The distinction is immaterial; Order 17 Rule 3 brings dismissals where parties fail to appear within the ambit of Order 12
The 1st and 5th Defendants argued that because all parties were present, the court should have invoked Order 17 Rule 4. The court held that Order 17 Rule 3 permits disposal in the modes directed by Order 12 where parties fail to appear on an adjourned hearing date, so the mode of dismissal specified under Order 12 was of no consequence. The review application was in any event overtaken by the reinstatement of the suit.
Legal principles established
#- The court's discretion to reinstate a dismissed suit is exercised judiciously to do justice and to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructs justice
- Nothing turns on whether a suit is dismissed under Order 12 or Order 17 of the Civil Procedure Rules where the Plaintiff fails to appear and call evidence, since Order 17 Rule 3 brings that scenario within Order 12
- References in Order 12 to Plaintiff and Defendant refer to the parties to the suit, not their advocates
Court orders
#- 1.The suit is reinstated on condition that it is fixed for hearing within six months of the date of the delivery of the ruling
- 2.The Plaintiff will pay the Defendants costs of the application to be assessed by the taxing master
- 3.The court declines to grant the orders sought in the application dated 10/05/2019
- Jurisdiction invoked
- Discretionary power to reinstate suits under Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murphy Chemicals E.A Limited v Hasbah Company Limited & 7 others [2019] KEELRC 2 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2/eng@2019-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.