[2018] KEELC 2401 (KLR)
The court found that there was no evidence on record that the Plaintiff's advocate had been served with the notice to show cause before the suit was dismissed for want of prosecution. The absence of a received stamp on the notice and the lack of attendance by both advocates in court on the material date indicated...
Source-derived case information.
- Citation
- [2018] KEELC 2401 (KLR)
- Parties
- Plaintiff: Christine Mukulu Muindi; Plaintiff: Mwanza Muindi; Defendant: Michael Mwandiku Muindi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 24 of 2006
- Procedural Posture
- Notice of Motion / Application for Reinstatement of Suit After Dismissal for Want of Prosecution
- Outcome
- Application allowed; suit reinstated subject to conditions.
- Judges
- OA Angote
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Service of Notice, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Mukulu Muindi
Plaintiff
Mwanza Muindi
Plaintiff
Michael Mwandiku Muindi
Defendant
Procedural Posture
Notice of Motion / Application for Reinstatement of Suit After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution due to lack of service of notice to show cause.
- 2 Whether the Plaintiff's advocate was properly served with the notice to show cause before the suit was dismissed.
Ratio Decidendi
The court found that there was no evidence on record that the Plaintiff's advocate had been served with the notice to show cause before the suit was dismissed for want of prosecution. The absence of a received stamp on the notice and the lack of attendance by both advocates in court on the material date indicated that service was not effected. Consequently, the dismissal was set aside and the suit reinstated, subject to the condition that it be fixed for hearing within 120 days.
Court Disposition
Application allowed; suit reinstated subject to conditions.
Orders
- The orders dismissing the suit are set aside.
- The suit is reinstated.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 24 OF 2006
CHRISTINE MUKULU MUINDI................................1ST PLAINTIFF
MWANZA MUINDI .....................................................2ND PLAINTIFF
VERSUS
MICHAEL MWANDIKU MUINDI................................DEFENDANT
RULING
1. In the Notice of Motion dated 1st February, 2018, the Plaintiff is seeking for the reinstatement of the suit that was dismissed by the court on 22nd March, 2017.
2. The Application is premised on the grounds that the Plaintiffs and their advocates were not aware that the suit had been fixed for Notice to show cause on the day it came up for dismissal; that the Plaintiff’s case closed on 30th June, 2009 and that what was pending was the Defence case.
3. The Application was not opposed by the Defendant.
4. According to the record, this suit came up for the dismissal of the suit for want of prosecution on 22nd March, 2017. The Notice to show cause why the suit should be dismissed ought to have been served on both the Plaintiff and the Defendant’s advocate. According to the record, none of the advocates were in court on 22nd March, 2017.
5. I have perused the copy of the notice of show cause that is on record. The said copy does not have the stamp of the Plaintiff’s advocate showing that it was received. In the circumstances, and in the absence of evidence that the Plaintiff’s advocate was served with the said Notice to show cause why the suit should not be dismissed, I shall set aside the orders of the court dismissing the suit.
6. For those reasons, I allow the Application dated 1st February, 2018 on condition that the suit is fixed for hearing within 120 days from the date of this Ruling.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 20TH DAY OF JULY, 2018.
O.A. ANGOTE
JUDGE