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ELRCDismissedNot stated in judgment· [2023] KEELRC 755 (KLR)

Kanyiri v Kuku Foods Limited (Cause 2388 of 2017) [2023] KEELRC 755 (KLR)

Environment and Land Court / first-instance court at Eldoret (court name not expressly stated in the judgment)
23 March 2023
MOMAUREEN ONYANGO
1,944 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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An Eldoret court refused to reinstate an application dismissed after counsel missed the hearing, blaming multiple emails and poor follow-up.

What this practically means

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Executive summary

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The suit proceeded to judgment in favour of the Claimant on 6th November 2020. The respondent's first application (16th March 2021) for stay and leave to file defence was dismissed in a ruling because Coulson Harney LLP Advocates were not properly on record and no draft defence was exhibited. A second application (25th April 2022) seeking stay and leave to file defence out of time was dismissed for want of prosecution and non-appearance of the applicant's counsel on 18th May 2022. By a Notice of Motion dated 24th May 2022, the applicant sought reinstatement of the 25th April 2022 application, its setting down for hearing, and stay of taxation of the Claimant's Bills of Costs scheduled for 8th June 2022. It was supported by affidavits of counsel Alfred Deya and litigation clerk Simon Nyamai John, who explained that notice of the hearing date was sent to the clerk's personal email while he was on leave. The Claimant opposed, arguing falsehoods, the applicant's history of default since 2017, and prejudice from delay in enjoying the judgment. Maureen Onyango J held that the automated virtual platform could not distinguish between official and other email addresses; a party using multiple emails cannot complain when notice goes to any one of them. Responsibility for follow-up and court diary management rests on counsel, and the applicant had conducted its affairs with utmost lethargy. The court found no merit in the prejudice submissions and declined to exercise its discretion. The application was dismissed with costs, and the registry directed to fix the Claimant's Bills for taxation within 14 days. Delivered virtually at Eldoret on 23rd March 2023.

Key legal issues

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01

Whether the court should exercise its discretion to reinstate the application dismissed for non-attendance and want of prosecution and stay taxation

Holding

The discretion was refused: the applicant's non-attendance was attributable to its own use of multiple email addresses and failure to follow up, and the Claimant would be prejudiced by further delay in realising her judgment.

Reasoning

The court found the notice of the hearing date was sent by the automated virtual platform to the litigation clerk's email, which the applicant itself had used. The system cannot distinguish between official and other emails. Further, after the duty judge directed that a date be taken at the registry, the applicant sat back awaiting court action. Given the applicant's history of lethargy, including failure to file a defence since 2017, the Claimant had been deprived of the fruits of judgment since 6th November 2020.

p. 4
02

Whether the applicant demonstrated absence of prejudice to the Claimant

Holding

No prejudice argument could stand: the Claimant had waited since November 2020 to benefit from the judgment.

Reasoning

Counsel submitted no prejudice would be occasioned to the Claimant by reinstatement, but the court rejected this as unserious, noting the incessant applications had already delayed the Claimant's enjoyment of the judgment and no defence was on record years after filing.

p. 4

Legal principles established

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  • Where a party provides an official email to the court, it must use that email exclusively; if a party uses multiple email addresses, notice sent to any one of them is valid and the party cannot complain.
  • Responsibility for managing a court diary rests with litigation counsel even where delegated to a litigation clerk; counsel must take responsibility for consequences of mismanaged follow-up.
  • An applicant who files an application under certificate of urgency without interim relief must diligently follow it up at the registry and check cause lists daily.

Court orders

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  1. 1.The application dated 24th May 2022 is dismissed
  2. 2.The registry is directed to fix the Claimant's Bills for taxation within the next 14 days
  3. 3.Costs of the application to the Claimant

Authorities

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Cases cited (8)

  • Vincent Amolo Ambani t/a Fast Track Investments .v. National Bank of Kenya LTD
    [2021] eKLR
  • James Mwangi Gathara & Another .v. Officer Commanding Station Loititoktok & 2 others
    [2008] eKLR
  • Ham .v. SOS
    [2021] eKLR
  • Osborn .v. Bank of the United States
    22 U.S. 738 (1824)
  • Global Tours & Travels Limited
    Nairobi Winding Up Cause No. 43 of 2000
  • Jinaan Nzioki Mbiuva .v. Cabinet Secretary Ministry of Lands and Housing & 6 others
    [2021] eKLR
  • Charles Omwatta Omwoyo .v. African Highlands and Produce Co. LTD
    [2002] eKLR
  • Alice Mumbi Nyanga & Another
    [2006] eKLR, Civil Case No. 394 B of 2001
Jurisdiction invoked
Original civil jurisdiction over the suit and its incidental interlocutory applications; no specific constitutional/statutory provision invoked in the judgment

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, "Kanyiri v Kuku Foods Limited (Cause 2388 of 2017) [2023] KEELRC 755 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/755/eng@2023-03-23

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