[2018] KEELC 974 (KLR)
The court found that the applicant's absence was due to a genuine mistake by counsel, who checked the addendum cause list instead of the main cause list. The court noted that the application for reinstatement was filed promptly, only two days after the dismissal, and that the matter had not been delayed before the...
Source-derived case information.
- Citation
- [2018] KEELC 974 (KLR)
- Parties
- Applicant: Stephen Kinja M’ Kiaira; Respondent: Joseph Michubu Birithia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 9 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement
- Outcome
- application allowed with costs to respondent
- Legal Topics
- Reinstatement of Application, Mistake of Counsel, Cause List Confusion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kinja M’ Kiaira
Applicant
Joseph Michubu Birithia
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement
Legal Issues
- 1 Whether the applicant's application dismissed for non-attendance should be reinstated.
- 2 Whether the mistake of counsel in checking the wrong cause list is a sufficient ground for reinstatement.
Ratio Decidendi
The court found that the applicant's absence was due to a genuine mistake by counsel, who checked the addendum cause list instead of the main cause list. The court noted that the application for reinstatement was filed promptly, only two days after the dismissal, and that the matter had not been delayed before the court. Citing established legal principles that mistakes of counsel should not be visited upon litigants where justice would be served, the court exercised its discretion in favour of the applicant and allowed the application for reinstatement, but awarded costs to the respondent.
Court Disposition
application allowed with costs to respondent
Orders
- The application dated 10/4/2018 is allowed.
- The earlier dismissed application is reinstated.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ELC COURT OF KENYA
AT MERU
ELC MISC APPLICATION NO. 9 OF 2018
STEPHEN KINJA M’ KIAIRA..........................................APPLICANT
-VS-
JOSEPH MICHUBU BIRITHIA....................................RESPONDENT
RULING.
1. This matter was filed on 14/3/2018 as an urgent miscellaneous application. The same was presented before the Judge the following day on 15/3/2018, where directions were given for the same to be heard on 9/4/2018 inter-partes. It appears that Applicants effected service and hence, their opponents were in court while applicant and his counsel were absent. The application was therefore dismissed. This prompted the applicant to file the present application dated 10th April 2018 for reinstatement of the previous application.
2. The Application is supported on the grounds on the face of it and on the affidavits sworn by two advocates, Kirimi Munene and Hosea Mutembei. Mr. Mutembei avers that he sought the assistance of his colleague, Munene Kirimi to prosecute the matter. According to Mr. Kirimi, he realized that he had checked the matter in the addendum cause list hence the confusion.
3. The Application was opposed by the Respondent via his Replying Affidavit filed in court on 7th May 2018, in which he deposed inter alia that on 9th April 2018, him and his advocate were in court while there was no appearance for his opponent, and therefore it was in order for his counsel to apply for the dismissal of the earlier application.
4. I have carefully considered this Application and the rival contentions by the parties and their submissions. The advocate for the applicant is shouldering the mistake, but avers that such mistake should not be visited upon the litigant. In the case of Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] Eklr. It was stated as follows;
“From past decisions of this court, it is without doubt that courts will readily excuse a mistake of counsel if it affords a justiciable, expeditious and holistic disposal of a matter”.
5. I have perused the cause list of 9/4/2018 where by this matter was listed as no. 2 in the main cause list. However, there was indeed an addendum cause list containing several matters. Perhaps applicant’s counsel did indeed look at the addendum instead of the main cause list. I have also taken into account that the present application was filed expeditiously, two days after the dismissal of the earlier application. This is also a case of 2018 and it has not marked time for long before this court. Against this background, I will exercise my discretion in favour of the applicant.
6. The application dated 10/4/2018 is hence allowed but with costs to Respondent.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 8TH NOVEMBER, 2018
IN THE PRESENCE OF:-
C/A: Janet
Ashaba holding brief for Mutembei for applicant
Nkunja for respondent
Respondent
HON. LUCY. N. MBUGUA
ELC JUDGE