[2024] KEELC 7043 (KLR)
The court found that the Plaintiff's argument of illness as the reason for nonattendance on 18th January 2023 had already been raised and considered in the earlier application for adjournment, which was dismissed. The Plaintiff failed to present any new or compelling evidence to justify review or reinstatement of...
Source-derived case information.
- Citation
- [2024] KEELC 7043 (KLR)
- Parties
- Plaintiff: John Lihutsu Ashiono; Defendant: Bernetta Musanga Lihutsu; Defendant: Rita Macheso Luyingwa; Defendant: Dyphina Dibisi Lihutsu; Defendant: Wilson Peter Khakali
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 8 of 2020
- Procedural Posture
- Environment and Land Case / Ruling on Application to Review, Set Aside or Vary Dismissal Order
- Outcome
- application dismissed with costs to the defendants
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Nonattendance, Review of Court Orders, Adjournment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Lihutsu Ashiono
Plaintiff
Bernetta Musanga Lihutsu
Defendant
Rita Macheso Luyingwa
Defendant
Dyphina Dibisi Lihutsu
Defendant
Wilson Peter Khakali
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Review, Set Aside or Vary Dismissal Order
Legal Issues
- 1 Whether the court should review, set aside or vary the order dismissing the Plaintiff's suit for nonattendance.
- 2 Whether the Plaintiff's failure to attend court was excusable due to illness.
- 3 Whether the grounds advanced in the application warrant the exercise of the court's discretion to reinstate the suit.
Ratio Decidendi
The court found that the Plaintiff's argument of illness as the reason for nonattendance on 18th January 2023 had already been raised and considered in the earlier application for adjournment, which was dismissed. The Plaintiff failed to present any new or compelling evidence to justify review or reinstatement of the suit. The court emphasized that the proper recourse for the Plaintiff, if dissatisfied with the dismissal, was to appeal the ruling rather than seek review on the same grounds. Consequently, the application lacked merit and was dismissed with costs to the Defendants.
Court Disposition
application dismissed with costs to the defendants
Orders
- The Notice of Motion dated 4th July 2023 is dismissed with costs to the Defendants.
Full Case Text
Judgment text and source record
31 paragraphs
Ashiono v Lihutsu & 3 others (Environment & Land Case 8 of 2020) [2024] KEELC 7043 (KLR) (24 October 2024) (Ruling)
Neutral citation: [2024] KEELC 7043 (KLR)
Republic of Kenya
In the Environment and Land Court at Kakamega
Environment & Land Case 8 of 2020
DO Ohungo, J
October 24, 2024
Between
John Lihutsu Ashiono
Plaintiff
and
Bernetta Musanga Lihutsu
1st Defendant
Rita Macheso Luyingwa
2nd Defendant
Dyphina Dibisi Lihutsu
3rd Defendant
Wilson Peter Khakali
4th Defendant
Ruling
1. When this matter came up for hearing on 19th October 2022, the Plaintiff was granted a last adjournment after which the matter was scheduled for hearing on 18th January 2023. The Plaintiff was also ordered to pay court adjournment fees. Come 18th January 2023, the Plaintiff’s advocate sought another adjournment on the ground that the Plaintiff was not in court. The court adjournment fees which were ordered on 19th October 2022 had also not been paid.
2. The Defendants opposed the application for adjournment. For reasons stated in a ruling which I delivered on 18th January 2023, I dismissed the application and scheduled the hearing for 12:00pm. When the appointed time for the hearing arrived, the Plaintiff was still not in court. Upon an application by counsel for the Defendants, I dismissed the Plaintiff’s suit with costs to the Defendants.
3. The Defendants thereafter filed a party and party bill of costs dated 25th January 2023 which was heard inter parte through written submissions and a ruling delivered on 13th September 2023. The bill was taxed at KShs 174,475. In the meantime, on 5th July 2023, the Plaintiff filed Notice of Motion dated 4th July 2023, which is the subject of this ruling.
4. The following orders are sought in the application:1. That this application be certified as urgent and be dispensed with in the first instance.2. That this honourable court be pleased to review, set aside or vary orders made on 18/01/2023 dismissing the applicant’s suit for nonattendance and all consequential or subsequent orders arising thereof.3. That the costs of this application be in the cause.
5. The application is based on the grounds listed on the face thereof and is supported by an affidavit sworn by the Plaintiff. He deposed that failure to attend court on 18th January 2023 was excusable since he was sick. He also stated that failure to attend court on previous occasions was not deliberate.
6. The Defendants opposed the application through a replying affidavit sworn by the Third and Fourth Defendants. They deposed that the Plaintiff was aware of the hearing of 18th January 2023 but deliberately chose not to attend court.
7. The application was canvassed through written submissions, which both sides duly filed. I have considered the application, the affidavits and the submissions.
8. The record shows that the suit was dismissed following a contested application for adjournment. The court heard both the Plaintiff and the Defendants prior to delivering a considered ruling on the question of whether an adjournment was merited. I found that the Plaintiff did not merit an adjournment. I thereafter dismissed the Plaintiff’s case, after according both sides another opportunity to be heard.
9. The gist of the Plaintiff’s current application is that he was sick on 18th January 2023 and that his failure to attend court on that date was excusable. The argument of sickness was advanced on 18th January 2023 and was duly considered. The court still concluded that an adjournment was no merited and that the case was for dismissal. There is no basis upon which the court should revisit the same arguments and determine the issue afresh. If the Plaintiff is of the opinion that the court was wrong in denying him an adjournment, he ought to have appealed against the ruling of 18th January 2023.
10. I find no merit in Notice of Motion dated 4th July 2023. I dismiss the application with costs to the Defendants.
DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 24THDAY OF OCTOBER 2024. D. O. OHUNGOJUDGEDelivered in open court in the presence of:Mr Mondia for the PlaintiffMr Akwala for the DefendantsCourt Assistant: M Nguyayi