[2019] KEELC 1249 (KLR)
The court found that there was an error apparent on the face of the record because the Notice to Show Cause was scheduled for hearing on 1/11/2018, but the matter was placed before the Judge and dismissed for want of prosecution on 30/10/2018 in unclear circumstances. This procedural irregularity deprived the...
Source-derived case information.
- Citation
- [2019] KEELC 1249 (KLR)
- Parties
- Plaintiff: Agnes Ochol Ogola; Plaintiff: Collins Otieno Njero; Defendant: Anania Omondi Njero Otundo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 56 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Order for Want of Prosecution
- Outcome
- application allowed; suit reinstated
- Judges
- TM Olando
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Error on Face of Record, Limitation of Actions, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Agnes Ochol Ogola
Plaintiff
Collins Otieno Njero
Plaintiff
Anania Omondi Njero Otundo
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Order for Want of Prosecution
Legal Issues
- 1 Whether the order for dismissal for want of prosecution was made prematurely.
- 2 Whether there was an error apparent on the face of the record justifying review or setting aside of the dismissal order.
Ratio Decidendi
The court found that there was an error apparent on the face of the record because the Notice to Show Cause was scheduled for hearing on 1/11/2018, but the matter was placed before the Judge and dismissed for want of prosecution on 30/10/2018 in unclear circumstances. This procedural irregularity deprived the plaintiffs of an opportunity to be heard and justified setting aside the dismissal order. The application was therefore merited and the suit was reinstated ex debito justitiae.
Court Disposition
application allowed; suit reinstated
Orders
- The order for want of prosecution issued on 30/10/2018 is set aside.
- The suit is reinstated.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO. 56 OF 2017 (O.S)
IN THE MATTER OF THE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA
AND
IN THE MATTER OF LAND REGISTRATION ACT 2012
AND
IN THE MATTER OF LAND PARCEL TITLE NO. SOUTH UGENYA/RANGALA/116
BETWEEN
AGNES OCHOL OGOLA
COLLINS OTIENO NJERO.................................................PLAINTIFFS
VERSUS
ANANIA OMONDI NJERO OTUNDO...............................DEFENDANT
RULING
1. The application before court is dated 4/3/2019 seeking orders that the order for want of prosecution issued herein on 30/10/2018 be set aside and or reviewed.
2. The application is made on the grounds that the order for dismissal was made prematurely and that there is a clear error on the face of record.
3. The Defendant filed grounds that the application is misconceived, bad in law and abuse of process of court.
4. I have considered the application, grounds of opposition and submissions filed by the Plaintiff and do find that there is an error apparent on the face of record as the N.T. S. C was to be heard on 1/11/2018 but was placed before the Judge in unclear circumstances on 30/10/2018 and the suit was dismissed for want of prosecution. The application is merited and is hereby allowed ex debito justitiae. The upshot of above is that the suit is hereby reinstated.
Orders accordingly.
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
DATED AND DELIVERED THIS 25TH DAY OF OCTOBER, 2019.
In the presence of:
Mr. Manuri for Plaintiffs
No appearance for Defendant
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE