[2018] KEELC 4710 (KLR)
The court found that the Plaintiff's advocate was delayed in attending court because the matter was not on the daily cause list and efforts were being made to locate the file. There was no opposition from the Defendant. The court accepted the Plaintiff's explanation as sufficient cause and exercised its discretion...
Source-derived case information.
- Citation
- [2018] KEELC 4710 (KLR)
- Parties
- Plaintiff: Anthony Ndunda Mwaniki; Defendant: Wavinya Bernard Nzomo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 70 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed; suit reinstated
- Judges
- OA Angote
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Cause List Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Ndunda Mwaniki
Plaintiff
Wavinya Bernard Nzomo
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the orders dismissing the suit for want of prosecution should be set aside.
- 2 Whether the suit should be reinstated given the circumstances of the hearing date.
Ratio Decidendi
The court found that the Plaintiff's advocate was delayed in attending court because the matter was not on the daily cause list and efforts were being made to locate the file. There was no opposition from the Defendant. The court accepted the Plaintiff's explanation as sufficient cause and exercised its discretion to set aside the dismissal and reinstate the suit, ensuring that justice is served and the Plaintiff is not prejudiced by a procedural irregularity beyond his control.
Court Disposition
application allowed; suit reinstated
Orders
- The orders of dismissal made on 20th March, 2017 are set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 70 OF 2008
ANTHONY NDUNDA MWANIKI....................................PLAINTIFF
VERSUS
WAVINYA BERNARD NZOMO..................................DEFENDANT
RULING
1. In the Application dated 19th April, 2017, the Plaintiff is seeking to set aside and or vary the orders of this court of 20th March, 2017, and have the suit reinstated.
2. The Application is premised on the grounds that when the matter came up for hearing on 20th March, 2017, the same was not on the cause list; that the Plaintiff proceeded to the registry to inquire about the matter and that he was referred to the Deputy Registrar.
3. The Applicant has deponed that when his advocate went to the Deputy Registrar’s chamber, he was informed that the matter had been placed before this court and that is when he found the matter had been dismissed for want of prosecution.
4. The Application was not opposed by the Defendant.
5. It would appear that this matter did not appear on the daily cause list of 20th March, 2017 when the matter came up for hearing.
6. Consequently, I will accept the Plaintiff’s deposition that his advocate delayed coming to court because he was trying to locate the file.
7. In the circumstances, I allow the Application dated 19th April, 2017 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 26TH DAY OF JANUARY, 2018.
O.A. ANGOTE
JUDGE