[2020] KEELC 239 (KLR)
The court held that it was functus officio, having already dismissed the suit after hearing the parties on the merits of the delay in prosecution. The application to reinstate the suit amounted to seeking a review or appeal of a decision by a judge of concurrent jurisdiction, which is not permissible. The proper...
Source-derived case information.
- Citation
- [2020] KEELC 239 (KLR)
- Parties
- Applicant: Charles Sigu Otieno; Respondent: Amos Otieno Aduol; Respondent: Carolyne Akoth Odhiambo; Respondent: Alex Naykoko; Respondent: County Council of Siaya; Respondent: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 535 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed with costs
- Judges
- A Ombwayo
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Notice to Show Cause, Functus Officio, Appeal Vs Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Sigu Otieno
Applicant
Amos Otieno Aduol
Respondent
Carolyne Akoth Odhiambo
Respondent
Alex Naykoko
Respondent
County Council of Siaya
Respondent
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the dismissal order and reinstate the suit for hearing on merit.
- 2 Whether the court is functus officio and thus lacks jurisdiction to reinstate the suit dismissed by a judge of concurrent jurisdiction.
Ratio Decidendi
The court held that it was functus officio, having already dismissed the suit after hearing the parties on the merits of the delay in prosecution. The application to reinstate the suit amounted to seeking a review or appeal of a decision by a judge of concurrent jurisdiction, which is not permissible. The proper recourse for the applicant was to file an appeal against the dismissal order, not to seek reinstatement before the same court. The application was therefore dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the dismissal order and reinstate the suit is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC NO. 535 OF 2015
CHARLES SIGU OTIENO............................................PLAINTIFF/APPLICANT
VERSUS
AMOS OTIENO ADUOL................................1ST DEFENDANT/RESPONDENT
CAROLYNE AKOTH ODHIAMBO..............2ND DEFENDANT/RESPONDENT
ALEX NAYKOKO...........................................3RD DEFENDANT/RESPONDENT
COUNTY COUNCIL OF SIAYA..................4TH DEFENDANT/RESPONDENT
ATTORNEY GENERAL...............................5TH DEFENDANT/RESPONDENT
RULING
The Plaintiff filed a Notice of Motion dated 1st November seeking to rescind and/or set aside the order of the court dismissing the suit made on 9th May 2017 and to reinstate the suit for hearing on merit.
The application is based on the affidavit of the Plaintiff dated 1st November 2019. The Plaintiff avers that he had initially instructed the firm of M/s Olel, Ingutiah & Company Advocates to act on his behalf in this matter. That he visited the firm sometime in May 2019 to enquire the position of the case, but his advocates seemed not be aware of what the position was, prompting the Plaintiff to visit the ELC registry. That the Plaintiff discovered from the court file that a notice to show cause why the suit should not be dismissed was sent to the firm of advocates which received it on 10th April 2017. That the Plaintiff went back to the said advocates with the information and they told him that they would take the necessary steps to have the matter reinstated. That the Plaintiff was surprised to discover that by October 2019 nothing had been done towards the reinstatement of the suit.
The Plaintiff avers that he has now decided to engage another firm to pursue the reinstatement and final determination of the suit, as he has taken a loan from Cooperative Bank of Kenya using the title to the suit parcel which has accrued to about Kshs 1. 2 million. That the Plaintiff stands to suffer irreparable loss and damage should the suit not be reinstated and heard on merit as the Defendants continue to do business on the plot.
1st Respondent’s Reply
The 1st Respondent filed a replying affidavit in opposition to the application dated 26th November 2019. The 1st Respondent averred that after consolidation and transfer of the suits which the Plaintiff had initially filed, the Plaintiff took no steps to fix the matter for hearing and nearly all the dated were taken by the Respondents’ advocates. That it was 2 years since the suit was dismissed and over 8 years of inactivity.
The 1st Respondent averred that the matter was duly fixed for Notice to Show Cause on 9th May 2017 and upon the Plaintiff failing to show cause why the suit should not be dismissed for want of prosecution, the same was dismissed. That the application was without merit, incompetent and ought to be struck out.
WHETHER ORDERS SOUGHT ARE MERITED
Plaintiff is being economical with the truth by averring that by October 2019 he was still relying on the firm of Olel, Ingutiah & Company Advocates to prosecute his case. It is clear from the documents filed that the Plaintiff’s current Advocates, Mung’ao Rachier & Co Advocates came on record for the Plaintiff on 5th May 2017, four days before the Plaintiff was to appear to show cause why the suit should not be dismissed.
Further, on the appointed date of 9th May 2017, the Plaintiff’s current Advocates appeared and an explanation given for the delay in prosecuting the case since August 2011. The court was not satisfied with the explanation and accordingly dismissed the suit.
The order of the judge, who arrived at his decision after hearing the matter on its merits, renders this court functus officioas far as this application is concerned as it involves the decision of a judge of concurrent jurisdiction. Any attempt to consider reinstating the suit would amount to an appeal or review of the judge’s decision. The proper cause of action for the aggrieved Plaintiff would have been to appeal the decision to dismiss the suit. The application is therefore dismissed with costs.
DATED AT KISUMU THIS 10TH DAY OF DECEMBER 2020
ANTONY OMBWAYO
JUDGE
This Judgment has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2019.
ANTONY OMBWAYO
JUDGE