[2018] KEELC 2415 (KLR)
The court found that the applicants' non-attendance on 18th January 2018 was due to an excusable mistake by their advocate, who misdiarised the hearing date. The court held that it has discretion to set aside its orders to prevent injustice where a party is affected by such a mistake. It was proper for the advocate...
Source-derived case information.
- Citation
- [2018] KEELC 2415 (KLR)
- Parties
- Applicant: Jitesh Shah; Applicant: Oshwal Education & Relief Board; Applicant: Oshwa University Trust; Respondent: The Hon. Deputy Registrar Environment & Land Court Nairobi; Interested Party: Koki Mbulu & Co. Advocates
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 11 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application allowed
- Legal Topics
- Setting Aside Orders, Judicial Review Leave, Non Attendance Explanation, Procedural Technicalities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jitesh Shah
Applicant
Oshwal Education & Relief Board
Applicant
Oshwa University Trust
Applicant
The Hon. Deputy Registrar Environment & Land Court Nairobi
Respondent
Koki Mbulu & Co. Advocates
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court should set aside its order dismissing the applicants' chamber summons for non-attendance.
- 2 Whether an advocate can swear an affidavit in support of an application where facts are not contentious.
- 3 Whether procedural technicalities should defeat substantive justice in the circumstances.
Ratio Decidendi
The court found that the applicants' non-attendance on 18th January 2018 was due to an excusable mistake by their advocate, who misdiarised the hearing date. The court held that it has discretion to set aside its orders to prevent injustice where a party is affected by such a mistake. It was proper for the advocate to swear the affidavit in support of the application as the facts were not contentious and were within his personal knowledge. The court further held that procedural technicalities should not defeat substantive justice, as provided under Order 51 Rule 10(2) of the Civil Procedure Rules and Article 159 of the Constitution. Accordingly, the application to set aside the dismissal...
Court Disposition
application allowed
Orders
- The order of 18th January 2018 dismissing the applicants' chamber summons dated 6th January 2017 is set aside.
- The applicants' chamber summons for leave to bring an application for judicial review is reinstated for hearing on the merits.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT OF KENYA
AT MILIMANI
ELC CASE NO. 11 OF 2017
IN THE MATTER OF:
AN APPLICATION BY JITESH SHAH,OSHWAL EDUCATION & RELIEF
BOARD AND OSHWAUNIVERSITY TRUST FOR LEAVE TO APPLY
FORJUDICIAL REVIEW ORDERS OF CERTIORARI,
PROHIBITION AND MANDAMUS
ANDIN THE MATTER OF:
THE ADVOCATES ACT CHAPTER 16 OF THE LAWS OF KENYA
ANDIN THE MATTER OF:
ADVOCATES REMUNERATION ORDER 2009 AS AMENDED BY THE ADVOCATES
(REMUNERATION) (AMENDMENT) ORDER 2014
IN THE MATTER OF:
THE FAIR ADMINISTRATIVE ACTION ACT,2015
JITESH SHAH...........................................................1ST APPLICANT
OSHWAL EDUCATION & RELIEF BOARD........2ND APPLICANT
OSHWA UNIVERSITY TRUST................................3RD APPLICANT
VERSUS
THE HON.DEPUTY
REGISTRAR ENVIRONMENT &
LAND COURT NAIROBI.............................................RESPONDENT
AND
KOKI MBULU & CO.ADVOCATES............INTERESTED PARTY
RULING.
1. The ex-parte applicants filed a Notice of Motion dated 25th January 2018 in which they seek an order that this court’s order of 18th January 2018 dismissing the applicant’s chamber summons dated 6th January 2017 be set aside. The applicants contend that when a date for the chamber summons which was dismissed was given by the court, the applicant’s advocate misdiarised the date as 19th January 2018 as opposed to 18th January 2018. When the advocates came for the hearing of the chamber summons on 19th January 2018, the application was not listed in the days cause list. The advocate went to the registry where upon perusal of the court file learnt that the application came up in court the previous day and had been dismissed for non-attendance.
2. The applicants contend that the non-attendance was not deliberate . It was due to the wrong entry in the diary. The applicants therefore plead with the court to set aside the dismissal order so that the applicants can be heard on their chamber summons for leave to bring up an application for judicial review.
3. The applicants’ application is only opposed by the interested party based on grounds of opposition dated 8th March 2018 and filed in Court on 12th March 2018. The interested party contends that the applicants application is irredeemably defective.
4. During the hearing of the application, Mr Wafula submitted that failure to attend court was not deliberate. The failure to attend court was due to a wrong entry in their court attendance diary. He submitted that this is an excusable mistake which will not prejudice any party if the court were to grant the prayers.
5. M/s Koki Mbulu for the interested party argued that the affidavit in support of the applicants application was sworn by an advocate which is wrong. She further argued that the application should have been brought under order 51 of the Civil Procedure Rules and that Article 159 of the Constitution which has been cited by the applicants is irrelevant.
6. In response to M/s Koki Mbulu’s submissions, Mr Wafula submitted that the issues which he deposed to were non contentious and as such, he was at liberty to swear an affidavit.
7. I have considered the applicants application as well as the opposition to the same by the interested party. The issue of whether to set aside an order of the court or not is an exercise of discretion by the court. This exercise of discretion is intended to avoid injustice to a party who has found himself in problems for an excusable mistake. In the instant case, the applicants have demonstrated that non attendance of their counsel on 18th January 2018 was due to wrong entry in the diary. The applicant’s counsel has exhibited a copy from their diary for both 18th and 19th January 2018. It is clear that he misdiarised the date for hearing as 19th January 2018 instead of 18th January 2018.
8. The law is clear that an advocate can swear an affidavit in a case where there are no issues which are contentious. In this case, it is the advocate who was in court and it is the advocate who made a wrong entry in the diary. It was therefore perfectly in order for the counsel to swear an affidavit to explain the non-attendance in court on 18th January 2018.
9. Order 51 Rule 10(2) is clear that no application shall be defeated on a technicality or for want of from that does not affect the substance of the application. This is what Article 159 enjoins the court to do by administering justice without undue regard to procedural technicalities. I therefore find that the applicant’s application is meritorious. I allow it as prayed in its entirety.
It is so ordered.
Dated, Signed and delivered at Nairobion this 28thday of June 2018.
E.O.OBAGA
JUDGE
In the presence of :-
Mr Kimani for 1st and 3rd applicants
Mr Otieno Mudanyi for M/s Njeri Mucheru for 2nd respondent
Court Clerk: Hilda
E.O.OBAGA
JUDGE