[2021] KEELC 4066 (KLR)
The court found that while counsel for the applicant failed to attend the virtual hearing due to alleged technical difficulties, there was no evidence that he attempted to notify the court or opposing counsel of these issues. Nonetheless, the court exercised its discretion not to punish the litigant for the...
Source-derived case information.
- Citation
- [2021] KEELC 4066 (KLR)
- Parties
- Plaintiff: Flora Impex Limited; Defendant: The Kenya Rural Road Authority; Defendant: Kenya Airports Authority; Defendant: National Land Commission
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 209 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Dismissed Motion
- Outcome
- application for reinstatement allowed with costs
- Legal Topics
- Reinstatement of Application, Non Attendance, Virtual Court Proceedings, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Flora Impex Limited
Plaintiff
The Kenya Rural Road Authority
Defendant
Kenya Airports Authority
Defendant
National Land Commission
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Dismissed Motion
Legal Issues
- 1 Whether the application dismissed for non-attendance should be reinstated.
- 2 Whether technical difficulties in joining virtual court constitute sufficient cause for non-attendance.
- 3 Whether the mistakes of counsel should be visited upon the litigant.
Ratio Decidendi
The court found that while counsel for the applicant failed to attend the virtual hearing due to alleged technical difficulties, there was no evidence that he attempted to notify the court or opposing counsel of these issues. Nonetheless, the court exercised its discretion not to punish the litigant for the counsel's mistake and allowed the application for reinstatement. The court emphasized the importance of counsel taking proactive steps to communicate any technical challenges in virtual proceedings but ultimately prioritized substantive justice over procedural default. The reinstatement was granted on condition that the applicant pays thrown away costs to the counsel who attended the...
Court Disposition
application for reinstatement allowed with costs
Orders
- The application dismissed for non-attendance is reinstated.
- The applicant shall pay thrown away costs of Kshs. 1,000 to each counsel who was present on 16 November 2020.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA
ELC SUIT NO. 209 OF 2018
FLORA IMPEX LIMITED...................................................................PLAINTIFF
-VERSUS-
THE KENYA RURAL ROAD AUTHORITY & 4 OTHERS......DEFENDANTS
RULING
(Application seeking to reinstate a motion that was dismissed for non-attendance; motion being one for enjoining parties to the suit, and leave to amend pleadings; counsel stating that he had technical difficulties in joining the virtual court proceedings; application for reinstatement allowed but court commenting that counsel had a duty to notify his counterparts and court of any technical glitches he may have suffered)
1. The application before me is dated and filed on 18 November 2020. The plaintiff/applicant is praying for orders to set aside the order which dismissed its application dated 27 February 2020, for failure to prosecute, which order was made on 16 November 2020.
2. The main prayer in the dismissed application was to have Kenya Airports Authority and the National Land Commission enjoined as defendants in the suit and thus the applicant wished to be granted leave to effect the said amendment.
3. The date of 16 November 2020 for the hearing of the dismissed application was taken by counsel for the applicant. On the said date, there was no attendance on the part of counsel for the applicant and I proceeded to dismiss the application for failure to prosecute it.
4. In the present application, counsel for the applicant alleges that he had technical difficulties in joining the virtual court platform when the dismissed application came up for hearing. He further states that he only managed to join the virtual proceedings after the matter had already been called out and subsequently dismissed.
5. Counsel for the 2ndand 3rd defendants stated that they did not wish to oppose the application, while counsel for the 4th proposed defendant opposed the application. She stated that the application did not raise sufficient cause for reinstatement, and that it was upon counsel to zealously represent their client by ensuring stable internet.
6. This application is principally based on grounds that counsel did not attend virtual court due to technical glitches. This may be a possibility, though going forward, I would urge any counsel having difficulties to either contact his or her counterparts, or the court assistant, to alert them of any challenges that they may be having. There is no evidence that counsel tried these options and he can blame nobody but himself for the dismissal. Be that as it may, I wouldn’t want to visit the mistakes of the counsel on a litigant. I will therefore reinstate the dismissed application. The applicant will however pay thrown away costs of Kshs. 1,000/= to each counsel who was present on 16 November 2020.
7. Orders accordingly.
DATED AND DELIVERED THIS 11TH DAY OF MARCH 2021
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA