[2024] KEELC 6564 (KLR)
The court found that the application for reinstatement was filed promptly after the dismissal of the suit and accepted the applicant's explanation that the advocate's absence was due to illness, an unpredictable circumstance. The court held that the validity of the suit could only be challenged when the suit is...
Source-derived case information.
- Citation
- [2024] KEELC 6564 (KLR)
- Parties
- Applicant: Aveco Ltd; Respondent: John Joseph Ndung'u Mwenja Partners Ltd; Respondent: Shamji Kalyan Pindoria Limited; Defendant: Nairobi County Government
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case E131 of 2023
- Procedural Posture
- Miscellaneous Application / Application for Reinstatement of Suit After Dismissal
- Outcome
- Application for reinstatement allowed with costs to the 1st respondent.
- Judges
- LN Mbugua
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Excusable Absence, Prompt Application, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aveco Ltd
Applicant
John Joseph Ndung'u Mwenja Partners Ltd
Respondent
Shamji Kalyan Pindoria Limited
Respondent
Nairobi County Government
Defendant
Procedural Posture
Miscellaneous Application / Application for Reinstatement of Suit After Dismissal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for non-attendance leading to dismissal of the suit.
- 2 Whether the suit should be reinstated for hearing.
- 3 Whether costs should be awarded to the respondent.
Ratio Decidendi
The court found that the application for reinstatement was filed promptly after the dismissal of the suit and accepted the applicant's explanation that the advocate's absence was due to illness, an unpredictable circumstance. The court held that the validity of the suit could only be challenged when the suit is active. Therefore, in the interests of justice, the court allowed the application for reinstatement but awarded costs to the 1st respondent.
Court Disposition
Application for reinstatement allowed with costs to the 1st respondent.
Orders
- The suit is reinstated for hearing.
- Costs of the application are awarded to the 1st respondent.
Full Case Text
Judgment text and source record
25 paragraphs
Aveco Ltd v John Joseph Ndung'u Mwenja Partners Ltd & 2 others (Environment & Land Miscellaneous Case E131 of 2023) [2024] KEELC 6564 (KLR) (9 October 2024) (Ruling)
Neutral citation: [2024] KEELC 6564 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Miscellaneous Case E131 of 2023
LN Mbugua, J
October 9, 2024
Between
Aveco Ltd
Plaintiff
and
John Joseph Ndung'u Mwenja Partners Ltd
Defendant
and
Shamji Kalyan Pindoria Limited
Respondent
and
Nairobi County Government
Defendant
Ruling
1. Before me is the Applicant’s Notice of Motion dated 6. 7.2023 seeking orders for the reinstatement of the suit which was dismissed on 3. 7.2024. The applicant contends that their advocate was ill, that is why they were absent on the date of 3. 7.2024.
2. In opposition thereof, the 1st respondent has filed a replying affidavit through its director, one Harilal Shamji Kanji dated 2. 10. 2023 where they contend that no sufficient reasons have been advanced to warrant the issuance of the orders sought, adding that the matter was wrongly filed as there is a substantive appeal.
3. I have considered the issues raised herein. The decision whether a suit should be re-instated for trial is a matter of justice and it depends on the facts of the case, See Mwangi S. Kimenyi vs Attorney General and Another [2014] eKLR.
4. I find that this matter is fresh, and that the application was filed promptly after the dismissal of the suit. I would also not question the reasons given for none appearance, seeing that sickness is unpredictable. The issue as to whether the suit is valid can only be raised when the said suit is active. In the circumstances, the application dated 6. 7.2023 is allowed but with costs to the 1st respondent.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9THDAY OF OCTOBER, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Odinga holding brief for M/s Muganda for the PlaintiffAdongo holding brief for Mr. Ochid for 1st & 2nd Respondents Court Assistant: Joan