[2025] KEMC 114 (KLR)

[2025] KEMC 114 (KLR)

The court found that the plaintiff's non-attendance was not deliberate but resulted from confusion regarding the cause listing and file availability, as detailed in the supporting affidavit. The application for reinstatement was made without unreasonable delay. The defendant had not entered appearance and did not demonstrate any prejudice that would result from reinstatement. Applying the principles from Ivita vs Kyumbu and CMC Holdings Limited vs Nzioki, the court held that the discretion to set aside the dismissal should be exercised in favour of the plaintiff to avoid injustice. The overriding objective of the Civil Procedure Act and Article 159 of the Constitution require that matters...

Citation
[2025] KEMC 114 (KLR)
Parties
Plaintiff: Millicent Savai Apamo; Defendant: Josephine Chepkurui Koskei
Court
Magistrate's Court
Court Station
Nakuru Law Courts
Jurisdiction
Kenya
Judgment Date
15 May 2025
Case Number
Environment & Land Case E140 of 2023
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Outcome
application allowed; dismissal order set aside; suit reinstated for hearing on merits
Judges
PA Ndege
Legal Topics
Reinstatement of Suit, Dismissal for Non Attendance, Judicial Discretion, Prejudice to Parties
Source Language
English
Civil Procedure Land and Property Reinstatement of Suit Dismissal for Non Attendance Judicial Discretion Prejudice to Parties

Case Brief

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Parties

Millicent Savai Apamo

Plaintiff

Josephine Chepkurui Koskei

Defendant

Procedural Posture

Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit

Legal Issues

  1. 1 Whether the plaintiff has provided sufficient cause to set aside the dismissal order for non-attendance and reinstate the suit.
  2. 2 Whether the delay in seeking reinstatement was excusable and not prejudicial to the defendant.

Ratio Decidendi

The court found that the plaintiff's non-attendance was not deliberate but resulted from confusion regarding the cause listing and file availability, as detailed in the supporting affidavit. The application for reinstatement was made without unreasonable delay. The defendant had not entered appearance and did not demonstrate any prejudice that would result from reinstatement. Applying the principles from Ivita vs Kyumbu and CMC Holdings Limited vs Nzioki, the court held that the discretion to set aside the dismissal should be exercised in favour of the plaintiff to avoid injustice. The overriding objective of the Civil Procedure Act and Article 159 of the Constitution require that matters...

Court Disposition

application allowed; dismissal order set aside; suit reinstated for hearing on merits

Orders

  • The application dated 10th April, 2025 is allowed.
  • The dismissal order made on 12th November, 2024 is set aside.