[2021] KEELC 3423 (KLR)
The court found that the appellants were not to blame for the mistake that led to the dismissal of the appeal for want of prosecution. The court emphasized the principle that errors by counsel should not automatically deprive parties of a hearing on the merits, especially in the absence of fraud or intention to...
Source-derived case information.
- Citation
- [2021] KEELC 3423 (KLR)
- Parties
- Appellant: Simon Mbocha Kinyati; Appellant: Elizabeth Njango; Respondent: Phoebe Njeri Kamau; Respondent: City Council of Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 67 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Re Admit Appeal
- Outcome
- Application allowed with conditions.
- Judges
- LC Komingoi
- Legal Topics
- Reinstatement of Appeal, Dismissal for Want of Prosecution, Enlargement of Time, Throw Away Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Mbocha Kinyati
Appellant
Elizabeth Njango
Appellant
Phoebe Njeri Kamau
Respondent
City Council of Nairobi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Re Admit Appeal
Legal Issues
- 1 Whether the order dismissing the appeal for want of prosecution should be set aside and the appeal re-admitted.
- 2 Whether the appellants should be granted leave to file written submissions out of time.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the appellants were not to blame for the mistake that led to the dismissal of the appeal for want of prosecution. The court emphasized the principle that errors by counsel should not automatically deprive parties of a hearing on the merits, especially in the absence of fraud or intention to overreach. The court considered the subject matter—land—to be of significant importance and held that justice would best be served by reinstating the appeal. The appellants were ordered to pay throw away costs to the 1st respondent as a condition for reinstatement, and were granted leave to file their submissions within twenty-one days.
Court Disposition
Application allowed with conditions.
Orders
- The orders dismissing the appeal for want of prosecution are set aside and the appeal is re-admitted.
- The appellants' advocates shall pay the 1st respondent throw away costs of Kshs.15,000/-.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CIVIL APPEAL NO 67 OF 2015
SIMON MBOCHA KINYATI.............................................1ST APPELLANT
ELIZABETH NJANGO.....................................................2ND APPELLANT
VERSUS
PHOEBE NJERI KAMAU..............................................1ST RESPONDENT
CITY COUNCIL OF NAIROBI.....................................2ND RESPONDENT
RULING
1. This is the Notice of Motion dated 18th December 2019 brought under section 1A, 1B, 3A and 63 of the Civil Procedure Act, Order 42 rule 21 and order 51 rule 15 of the Civil Procedure Rules, 2010, Section 159 of the Constitution and all other enabling provisions of the law.
2. It seeks orders:-
1. Spent.
2. Spent.
3. That the order of the honourable Lady Justice L. Komingoi issued on 19th September 2019 dismissing the appeal for want of prosecution be set aside and/or reviewed and the appeal be re-admitted.
4. That the court be pleased to enlarge time for the appellant to file the written submissions annexed to the supporting affidavit filed herewith.
5. That the costs of this application be provided for.
3. The grounds are on the face of the application and are set out in paragraph (a) to (p).
4. The application is supported by the affidavit of Guandaru Thuita, advocate of the appellants sworn on the 18th December 2019.
5. The application is opposed. There is a replying affidavit sworn by Phoebe Njeri Kamau, the 1st respondent herein sworn on the 12th October 2020.
6. On the 21st July 2020, the court with the consent of the parties directed that the application be canvassed by way of written submissions.
7. Consequently, the appellants filed the submissions dated 14th October 2020 while the 1st respondent’s are dated 17th November 2020.
8. I have considered the notice of motion and the supporting affidavit. I have also considered the replying affidavit, the written submissions filed and the authorities cited. The issue for determination is whether this application is merited.
9. I have gone through the affidavit of Guandaru Thuita Advocate, sworn on the 18th December 2019 in particular paragraphs 8 to 10. I am satisfied by the reasons advanced by the advocate.
10. In the case of Philip Chemwolo & Another vs Augustine Kubede [1982-88] KAR 103 at 1040Apoloo J (as he then was) stated as follows:- “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of the imposing discipline”.
It is clear that the appellants herein did not contribute to the mistake leading to the dismissal of the appeal. They ought not to be punished.
11. It is the appellants’ advocate submission that they are willing to shoulder the burden of throw away costs.
12. It is in the interest of justice that this appeal be heard on its merit. The subject matter is land which remains an emotive issue in our country.
13. I will reluctantly allow the notice of motion dated 18th December 2019 with conditions.
14. Accordingly, I grant the orders as follows: -
(a) That the orders of this honourable court issued on 19th September 2019 dismissing the Appeal for want of prosecution are hereby set aside and the appeal is re-admitted.
(b) That the appellants’ advocates shall pay the 1st respondent throw away costs of Kshs.15,000/-.
(c) That the appellants do file their submissions within twenty one (21) days from the date of this ruling.
(d) The 1st respondent shall have costs of this application.
It is so ordered.
Dated, signed and delivered in Nairobi on this 29th day of April 2021.
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Thuita for the Appellants
Mr. Orlando for the Respondents
Phyllis – Court Assistant