[2019] KEELC 119 (KLR)

[2019] KEELC 119 (KLR)

The court found that the dismissal of the plaintiffs' suit was primarily due to a blunder by their advocate, who failed to attend court after an unsuccessful application for adjournment. The court held that such mistakes should not be visited upon the litigants, especially where the right to be heard is fundamental...

Source-derived case information.

Citation
[2019] KEELC 119 (KLR)
Parties
Plaintiff: John Kamau Njoroge; Plaintiff: Stephen Muya Njoroge; Defendant: Mary Njeri Kimori
Court
Environment and Land Court
Court Station
Environment and Land Court at Nairobi
Jurisdiction
Kenya
Case Number
Environment & Land Case 650 of 2013
Procedural Posture
Notice of Motion / Application to Set Aside Dismissal Order and Reinstate Suit
Outcome
Application allowed; dismissal order set aside; suit reinstated; throw away costs imposed.
Judges
EO Obaga
Legal Topics
Setting Aside Orders, Dismissal for Non Attendance, Reinstatement of Suit, Advocate Mistake, Throw Away Costs
Source Language
en
Civil Procedure Land and Property Setting Aside Orders Dismissal for Non Attendance Reinstatement of Suit Advocate Mistake Throw Away Costs

Source-derived case record

Summary, issues, holding and outcome

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Parties

John Kamau Njoroge

Plaintiff

Stephen Muya Njoroge

Plaintiff

Mary Njeri Kimori

Defendant

Procedural Posture

Notice of Motion / Application to Set Aside Dismissal Order and Reinstate Suit

Legal Issues

  1. 1 Whether the plaintiffs have shown sufficient grounds to set aside the dismissal order of 7th February 2019 for non-attendance.
  2. 2 Whether the mistakes or blunders of advocates should be visited upon their clients in the context of dismissal for non-attendance.

Ratio Decidendi

The court found that the dismissal of the plaintiffs' suit was primarily due to a blunder by their advocate, who failed to attend court after an unsuccessful application for adjournment. The court held that such mistakes should not be visited upon the litigants, especially where the right to be heard is fundamental and protected by the Constitution. The court exercised its discretion to set aside the dismissal order, reinstating the suit for hearing, but imposed throw away costs of Kshs. 20,000 to be paid personally by the plaintiffs' advocate to the defendant before the next hearing date. Failure to pay would result in the suit being dismissed, with liberty for the plaintiffs to sue...

Court Disposition

Application allowed; dismissal order set aside; suit reinstated; throw away costs imposed.

Orders

  • Orders of 7th February 2019 dismissing the suit are set aside.
  • The suit is reinstated for hearing.