[2019] KEHC 5425 (KLR)
The court found that while the hearing date and venue were communicated in the presence of all parties' counsel and published on the cause list, there was ambiguity regarding the exact courtroom where the matter was to be heard. The applicant's explanation of confusion between courtrooms was plausible, and there was...
Source-derived case information.
- Citation
- [2019] KEHC 5425 (KLR)
- Parties
- Applicant: Benjamin Mugambi Mukindia; Respondent: The Land Adjudication and Settlement Officer, Tigania East/West District; Respondent: Demarcation Officer, Akaiga Adjudication Section; Interested Party: M’Iitaru Kabari; Interested Party: Jeremy Kanyi Kabari
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 5 of 2015
- Procedural Posture
- Judicial Review Application / Ruling on Application for Reinstatement of Suit
- Outcome
- application allowed
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Judicial Review Procedure, Land Adjudication Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Mugambi Mukindia
Applicant
The Land Adjudication and Settlement Officer, Tigania East/West District
Respondent
Demarcation Officer, Akaiga Adjudication Section
Respondent
M’Iitaru Kabari
Interested Party
Jeremy Kanyi Kabari
Interested Party
Procedural Posture
Judicial Review Application / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the ex parte applicant has provided sufficient grounds for reinstatement of the suit dismissed for non-attendance.
- 2 Whether the absence of the applicant and/or his advocate was excusable under the circumstances.
Ratio Decidendi
The court found that while the hearing date and venue were communicated in the presence of all parties' counsel and published on the cause list, there was ambiguity regarding the exact courtroom where the matter was to be heard. The applicant's explanation of confusion between courtrooms was plausible, and there was no evidence of deliberate delay or indolence. The application for reinstatement was filed promptly. In the interests of justice and giving the applicant the benefit of the doubt, the court exercised its discretion to reinstate the suit, finding that the applicant had shown sufficient cause for his absence.
Court Disposition
application allowed
Orders
- The application dated 25.10.2018 is allowed; the suit is reinstated.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
JUDICIAL REVIEW APPLICATION NO. 5 OF 2015
BENJAMIN MUGAMBI MUKINDIA..............................................EXPARTE APPLICANT
VERSUS
THE LAND ADJUDICATION AND SETTLEMENT OFFICER
TIGANIA EAST/WEST DISTRICT..........................................................1ST RESPONDENT
DEMARCATION OFFICER, AKAIGA
ADJUDICIAOTN SECTION ....................................................................2ND RESPONDENT
M’ITARU KABARI ..............................................................................INTERESTED PARTY
JEREMY KANYI KABARI ....................................SUBSTITUTED INTERESTED PARTY
RULING
1. Vide the application dated 25. 10. 2018, the exparte applicant is seeking orders for reinstatement of the suit, which was dismissed on 25. 10. 2018. Applicant avers that he did not intentionally absent himself from the court. He avers that he had gone to court no. 3 where his case is usually held but he was told to go to court no. 2 where Judge Kemei was sitting. Upon going to court no. 2 he found that his matter had been called out and was dismissed.
2. The respondent and the interested party had indicated that they would oppose the application. However only the interested party filed a replying affidavit and submissions. The interested party avers that the exparte applicant’s advocate was present in court on 24. 9.2018 when the date of hearing was given as 25. 10. 2018. It is also argued that the matter was in the cause list which was placed in the public notice board clearly indicating where the case would be heard and that no reasonable grounds have been advanced as to why the exparte applicant’s counsel was absent and hence the court should not assist on indolent litigant.
3. I have considered all the arguments raised herein. It is not disputed that the date of 25. 10. 2018 was given on 24. 9.2018 in the presence of counsels for all the parties. The matter was to be heard before Hon. Judge Kemei who was a visiting judge. The exparte applicant avers that he had gone to court no. 3 only to hear an announcement that he was to go to court no. 2.
4. The interested party has stated that the cause list placed on the notice board clearly indicated where the case was to be heard, but he has not clarified which place it was where the matter was to be heard. From the material presented before me, I am not able to ascertain where Judge Kemei was sitting on 25. 10. 2018.
5. There is a likelihood that the exparte applicant was confused as to where his case was being heard though there is no plausible explanation as to where his advocate was.
6. Further, I have taken into consideration that this application was filed in a timely manner. I will give the exparte applicant the benefit of doubts. I allow the application dated 25. 10. 2018 with no orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 17TH DAY OF JULY, 2019 IN THE PRESENCE OF:-
C/A: Kananu
B.G Kariuki for exparte applicant
Kiongo for respondent
Murango Mwenda for interested part
Exparte applicant
Interested party
HON. LUCY. N. MBUGUA
ELC JUDGE