Susan Cheboso Mkanda v Eshikuku Girls Secondary School & 5 others [2020] eKLR Case Summary

Court
Environment and Land Court at Kitale
Category
Civil
Judge(s)
Mwangi Njoroge
Judgment Date
September 04, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the 2020 eKLR case summary of Susan Cheboso Mkanda v Eshikuku Girls Secondary School & 5 others, examining key legal issues and outcomes. Ideal for legal insights.


Case Brief: Susan Cheboso Mkanda v Eshikuku Girls Secondary School & 5 others [2020] eKLR

1. Case Information:
- Name of the Case: Susan Cheboso Mkanda v. Eshikuku Girls Secondary School & Others
- Case Number: Land Case No. 86 of 2015
- Court: Environment and Land Court at Kitale
- Date Delivered: September 4, 2020
- Category of Law: Civil
- Judge(s): Mwangi Njoroge
- Country: Kenya

2. Questions Presented:
The central legal issues in this case include:
- Whether the court should review and set aside its previous order dismissing the plaintiff's suit for non-attendance.
- Whether the plaintiff is entitled to have her suit reinstated and the status quo maintained pending the hearing of the case.

3. Facts of the Case:
The plaintiff, Susan Cheboso Mkanda, initiated the case against multiple defendants, including Eshikuku Girls Secondary School and the County Government of Kakamega. The plaintiff's suit was dismissed on December 14, 2018, due to non-attendance, attributed to her engagement in marking national examinations and a lack of communication from her former counsel regarding the hearing date. Following the dismissal, the plaintiff filed an application for reinstatement of her suit, claiming her absence was not her fault. The defendants opposed the application, arguing it was res judicata and that the plaintiff had not been diligent in prosecuting her case.

4. Procedural History:
The case progressed through several key stages:
- On December 14, 2018, the plaintiff's suit was dismissed for non-attendance.
- The plaintiff filed an application on April 29, 2019, seeking reinstatement, which was dismissed on September 30, 2019, due to a lack of consent in the record.
- The plaintiff subsequently filed the application dated February 20, 2020, seeking to review the dismissal order and reinstate her suit.

5. Analysis:
- Rules: The court considered provisions from the Civil Procedure Rules, specifically Order 12 Rule 7 and Order 51 Rule 1, as well as Sections 1A, 3, 5, and 63(e) of the Civil Procedure Act, which govern the review and reinstatement of suits.
- Case Law: The court referenced several precedents, including *Philip Keiptoo Chemwolo & Another v. Augustine Kubende* [1986] KLR 492, *Joseph Mweteri Igweta v. Mukira M’Ethare & Attorney General* 2002 [eKLR], and *Lucy Bosire v. Kehancha Div. Land Dispute Tribunal & Others* [2013] eKLR, to illustrate the leniency courts have shown towards plaintiffs whose counsel have failed them.
- Application: The court found that the plaintiff's absence was due to her former counsel's failure to communicate effectively, which constituted a valid reason for her non-attendance. The court emphasized the principle of being condemned unheard, as enshrined in Article 50 of the Kenyan Constitution, and determined that the plaintiff should be given another opportunity to present her case.

6. Conclusion:
The court ruled in favor of the plaintiff, granting her application to reinstate the suit and vacate the previous dismissal order. The status quo prior to December 14, 2018, was to be maintained pending the hearing of the case, reflecting the court's commitment to ensuring fair access to justice.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The Environment and Land Court at Kitale ruled in favor of Susan Cheboso Mkanda, reinstating her suit against Eshikuku Girls Secondary School and others after finding that her previous dismissal for non-attendance was unjust due to her counsel's failure to communicate the hearing date. The decision underscores the importance of fair hearing rights and the court's willingness to provide remedies in cases of counsel negligence. This case may have broader implications for future cases regarding the responsibilities of legal counsel and the rights of plaintiffs in civil litigation.

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