[2024] KEELC 5008 (KLR)

Source-derived case information.

Citation: [2024] KEELC 5008 (KLR)
Parties: Plaintiff: Fatuma Mohammed Ali; Defendant: Boru Dika; Defendant: Henry Kimathi; Defendant: Adam Gitonga Nyagah
Court: Environment and Land Court
Court Station: Environment and Land Court at Isiolo
Jurisdiction: Kenya
Case Number: Environment & Land Case 002 of 2022
Procedural Posture: Environment and Land Case / Ruling on Application to Review and Set Aside Previous Orders Due to Alleged Error on the Face of the Record; Application Dismissed for Non Prosecution
Outcome: application dismissed for non-prosecution
Judges: PM Njoroge
Legal Topics: Review of Court Orders, Non Prosecution Dismissal, Estate Administration, Absence of Counsel
Source Language: en

Civil Procedure Land and Property Review of Court Orders Non Prosecution Dismissal Estate Administration Absence of Counsel

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Summary, issues, holding and outcome

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Parties

Fatuma Mohammed Ali

Plaintiff

Boru Dika

Defendant

Henry Kimathi

Defendant

Adam Gitonga Nyagah

Defendant

Procedural Posture

Environment and Land Case / Ruling on Application to Review and Set Aside Previous Orders Due to Alleged Error on the Face of the Record; Application Dismissed for Non Prosecution

Legal Issues

1 Whether the application to review and set aside the orders of 4th December, 2023 should be allowed due to an error on the face of the record or sufficient reason.
2 Whether the absence of the applicant and his advocate on the hearing date justified dismissal for non-prosecution.

Ratio Decidendi

The court found that the applicant and his advocate were aware of the hearing date and had served it upon the other parties, yet failed to attend court and provided no explanation for their absence. In such circumstances, the court exercised its discretion to dismiss the application for non-prosecution. The application for review and setting aside of the previous orders was therefore dismissed, and costs were awarded to the plaintiff and the 2nd defendant, whose advocates were present.

Court Disposition

application dismissed for non-prosecution

Orders

The application dated 22/5/2024 is dismissed for non-prosecution.
Costs are awarded to the plaintiff and the 2nd defendant.

Full Case Text

Judgment text and source record

26 paragraphs

Ali v Dika & 2 others (Environment & Land Case 002 of 2022) [2024] KEELC 5008 (KLR) (1 July 2024) (Ruling)

Neutral citation: [2024] KEELC 5008 (KLR)

Republic of Kenya

In the Environment and Land Court at Isiolo

Environment & Land Case 002 of 2022

PM Njoroge, J

July 1, 2024

Between

Fatuma Mohammed Ali

Plaintiff

and

Boru Dika

1st Defendant

Henry Kimathi

2nd Defendant

Adam Gitonga Nyagah

3rd Defendant

Ruling

1. This application is dated 22/5/2024 and seeks orders that:1. This application be certified urgent and be heard without delay as the main suit is scheduled for further hearing on 27th May, 2024. 2.This Honourable Court be pleased to review and set aside the orders of 4th December, 2023 as there is an error on the face of the record and there are sufficient reasons, to review the said orders to meet the ends of Justice.3. This Honourable Court do make such further or better orders as will meet the ends of justice.4. Costs of this application be in the cause.

2. The application has the following grounds:1. The Applicant represents the estate of his deceased father the 3rd defendant herein.2. The applicant obtained the letters of Administration to his 3rd defendant’s estate on 8th day of July, 2019. 3.On the 14th day of October, 2019 this Honourable Court granted unlimited leave to the applicant to file further statements and documents.4. Such statements and documents were filed on 23/1/2020, 2/11/2021 & 3/11/2021.

3. This application came up for directions on 1/7/2024. The applicant and his advocate were not in court. The advocate for the 2nd and 3rd defendants asked the court to dismiss the application for non-prosecution.

4. I find that the applicant and his advocate were aware of this date and indeed served it upon the other parties. Therefore, there was no reason for their absence as none was proffered.

5. In the circumstances, this application is dismissed.

6. Costs shall follow the event and are awarded to the plaintiff and to the 2nd defendant whose advocates are present in court today.

7. Parties will come to court for hearing on 30/9/2024 AND the plaintiff’s advocate is directed to serve this hearing date upon the 3rd defendants advocate.

DELIVERED IN OPEN COURT AT ISIOLO THIS 1STDAY OF JULY, 2024 IN THE PRESENCE OF:Court Assistant: Balozi/RahmaJulius Ondieki for the plaintiffTyson Mwenda and Mwirigi Mbaya for the 2nd defendant.HON. JUSTICE P.M NJOROGEJUDGE

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