[2019] KEELC 2209 (KLR)

[2019] KEELC 2209 (KLR)

The court found that the Plaintiffs. advocate had made an honest and inadvertent mistake in diarizing the hearing date as 26th September, 2018 instead of the correct date, 27th September, 2018. The advocate had served the Defendants. advocate with a hearing notice for the wrong date and only realized the error when he attended court on 26th September, 2018. On 27th September, 2018, his representative was unable to secure an adjournment before the matter was dismissed for want of prosecution. The court held that the mistake of counsel should not be visited upon the client, especially where there is no evidence of prejudice to the other party and the Plaintiffs have demonstrated readiness...

Citation
[2019] KEELC 2209 (KLR)
Parties
Plaintiff: Daniel Kimanthi Mutisya; Plaintiff: Josephat Waita Mutisya (Suing on behalf and beneficiaries of the Estate of Ndunda Waita – deceased); Defendant: The Chairman; Defendant: The Secretary; Defendant: The Treasurer; Defendant: Mwea Farmers Co. Limited
Court
Environment and Land Court
Court Station
Environment and Land Court at Machakos
Jurisdiction
Kenya
Judgment Date
19 July 2019
Case Number
Environment & Land Case 168 of 2016
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal Order
Outcome
Application allowed; dismissal order set aside; suit reinstated.
Judges
OA Angote
Legal Topics
Setting Aside Orders, Want of Prosecution, Mistake of Counsel, Discretion of Court
Source Language
English
Civil Procedure Land and Property Setting Aside Orders Want of Prosecution Mistake of Counsel Discretion of Court

Case Brief

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Parties

Daniel Kimanthi Mutisya

Plaintiff

Josephat Waita Mutisya (Suing on behalf and beneficiaries of the Estate of Ndunda Waita – deceased)

Plaintiff

The Chairman

Defendant

The Secretary

Defendant

The Treasurer

Defendant

Mwea Farmers Co. Limited

Defendant

Procedural Posture

Notice of Motion / Ruling on Application to Set Aside Dismissal Order

Legal Issues

  1. 1 Whether the court should set aside the dismissal order made suo moto for want of prosecution.
  2. 2 Whether the mistake of counsel in diarizing the wrong hearing date is sufficient ground to reinstate the suit.

Ratio Decidendi

The court found that the Plaintiffs. advocate had made an honest and inadvertent mistake in diarizing the hearing date as 26th September, 2018 instead of the correct date, 27th September, 2018. The advocate had served the Defendants. advocate with a hearing notice for the wrong date and only realized the error when he attended court on 26th September, 2018. On 27th September, 2018, his representative was unable to secure an adjournment before the matter was dismissed for want of prosecution. The court held that the mistake of counsel should not be visited upon the client, especially where there is no evidence of prejudice to the other party and the Plaintiffs have demonstrated readiness...

Court Disposition

Application allowed; dismissal order set aside; suit reinstated.

Orders

  • The application dated 25th October, 2018 is allowed as prayed.
  • The dismissal order of 27th September, 2018 is set aside.