[2009] KEHC 3103 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO

Civil Case 72 of 2006

1. Land Law

2. Civil Practice and Procedure

3. Subject of main suit

a) Land

LR Kericho/Manaret/109

now LR Kericho/Manaret/S.S 600

b) Fraud

4. Application 1st April, 2009

a) Suit taken out of the hearing list for 16th March, 2009 but put down for mention

b) Parties absent except advocate for 1st defendant who prayed matter be struck out/dismissed for non-attendance.

5. Held

a) The attendance of Plaintiff was required to court on 16th March, 2009 despite indicating that matter would not proceed.

b) Application brought without inordinate delay.

c) Misunderstanding by applicant on attendance to court.

d) Orders dismissing suit discretionary and granted for applicant.

To set aside dismissed orders.

6. Case Law – Nil.

7. Advocate

P.C. Kosgey advocate instructed to hold brief by the firm of M/S Juma & Co. advocates

for the Applicant/Plaintiff – present

H.O. Orayo advocate instructed to hold brief by the firm of M/S Nyaramba for the 1st defendant – present

N/A for the 2nd defendant

BENSITA CHANGAMU OSORO ………………..….....………. PLAINTIFF

VERSUS

SUSAN NYANGATE MAGETO …………………….….. 1ST DEFENDANT

GABRIEL KIPKORIR LANGAT …………………………2ND DEFENDANT

RULING

I: Background

1. On the 16th March, 2009 the applicant herein failed to attend Court. His suit was dismissed for non-attendance.

2. This matter concerned land involving LR Kericho/Manaret/109 now LR Kericho/Manaret/S.S./600 in which the issue of fraud is being agitated.

3. The advocate for the 1st defendant was present but the plaintiff and 2nd respondent herein were absent. The suit was duly dismissed.

II: Application dated 1. 4.09

4. The applicant request that this suit be reinstated as he was under the impression that the matter had been taken out of the list during the call over.

5. This court did peruse the court file and indeed noted that the matters were taken out of the call list.

III: Opinion

6. The reinstating of a suit dismissed for non-attendance is at the discretion of the court.

7. It is noted that the applicant was required to attend court on 16th March, 2009 despite that, matters would not proceed. The Plaintiff/Applicant failed to attend court. This may have been due to misunderstanding by the applicant to attend to court.

8. The application has been brought without inordinate delay. The orders dismissing suit is granted. The applicants seeking to set aside the courts order for dismissal for non-attendance is granted. There be costs to 1st defendant but not to 2nd defendant who is absent.

DATED this 19th day of May, 2009 at KERICHO

M. ANG’AWA

JUDGE

Advocate

P.C. Kosgey advocate instructed to hold brief by the firm of M/S Juma & Co. advocates

for the Applicant/Plaintiff – present

H.O. Orayo advocate instructed to hold brief by the firm of M/S Nyaramba for the 1st defendant – present

N/A for the 2nd defendant