Peter Mwendwa Malonza t/a Malonza & Co. Advocates v Stephen Nzuki Mwania & 3 others [2020] eKLR Case Summary

Court
Environment and Land Court at Machakos
Category
Civil
Judge(s)
O. A. Angote
Judgment Date
October 23, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Peter Mwendwa Malonza t/a Malonza & Co. Advocates v Stephen Nzuki Mwania & 3 others [2020] eKLR


1. Case Information:
- Name of the Case: Peter Mwendwa Malonza t/a Malonza & Co. Advocates v. Stephen Nzuki Mwania & Others
- Case Number: ELC. CASE NO. 241 OF 2017
- Court: Environment and Land Court at Machakos
- Date Delivered: 23rd October 2020
- Category of Law: Civil
- Judge(s): O. A. Angote
- Country: Kenya

2. Questions Presented:
The central legal issues presented before the court were whether to set aside the order made on 17th September 2019, which closed the Defendants' case and dismissed their Counter-Claim, and whether the Defendants should be allowed to prosecute their Defence and Counter-Claim against the Plaintiff.

3. Facts of the Case:
The Plaintiff, Peter Mwendwa Malonza, is an advocate who filed a suit against the Defendants, who are trustees of the Mlolongo Brothers Association, seeking legal fees. The Defendants, represented by Wamahiu Kimeria & Company Advocates, did not attend the hearing scheduled for 17th September 2019 due to their advocate's late arrival after the Plaintiff had already testified and closed his case. The Defendants later changed legal representation to Nzei & Company Advocates. The Defendants claimed that they were not informed of the hearing date and sought to have the order closing their Defence and dismissing their Counter-Claim set aside.

4. Procedural History:
The case progressed through the Environment and Land Court, where the Defendants filed a Notice of Motion on 30th October 2019, seeking to set aside the order from 17th September 2019. The Plaintiff opposed the application, arguing that the Defendants were served with a hearing notice and that their actions were merely a tactic to delay proceedings. The application was considered through written submissions, where both parties presented their arguments regarding the jurisdiction of the court and the merits of the Defendants' Defence and Counter-Claim.

5. Analysis:
- Rules: The court referenced Order 12 Rule 2 of the Civil Procedure Rules, which governs the proceedings when a party fails to attend a scheduled hearing. It also cited provisions from the Advocates Act concerning taxation of legal fees.

- Case Law: The court considered several precedents, including *Savings & Loan Kenya Limited v. Onyancha Bwomote* (2014) eKLR, which defined sufficient cause for default in attendance, and *James Kanyiita Nderitu & another v. Marios Philotas Ghikas & another* (2016) eKLR, emphasizing the importance of the right to be heard. The court also referenced *Essaji v. Solanki* (1968) EA 218, which underscored that errors should not bar a litigant from pursuing their rights.

- Application: The court found that the absence of the Defendants' advocate was not deliberate, as he had arrived shortly after the Plaintiff's testimony due to a road accident. The court determined that the Defendants had shown sufficient cause for their absence and that the interests of justice warranted allowing them to prosecute their Defence and Counter-Claim.

6. Conclusion:
The court ruled in favor of the Defendants, allowing their application to set aside the order of 17th September 2019. The Defendants were permitted to prosecute their Defence and Counter-Claim and to cross-examine the Plaintiff. The decision emphasized the importance of allowing parties the right to be heard and the need to avoid injustice due to procedural errors.

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

8. Summary:
The Environment and Land Court at Machakos ruled in favor of the Defendants, setting aside a previous order that had closed their Defence and dismissed their Counter-Claim. The ruling underscored the court's discretion to ensure justice is served and that parties are not penalized for their counsel's mistakes. This case highlights the importance of procedural fairness in civil litigation and the court's commitment to allowing substantive issues to be heard on their merits.

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