[2021] KEELC 4200 (KLR)
The court found that the application to set aside the dismissal and reinstate the suit lacked merit for two principal reasons. First, the affidavit in support was sworn by the advocate rather than the plaintiff, with no disclosure of the source of information for key averments, rendering the evidence insufficient....
Source-derived case information.
- Citation
- [2021] KEELC 4200 (KLR)
- Parties
- Plaintiff: Christopher Kanai Kamau; Defendant: Dayonosious Karomo Ndirangu; Respondent: Commissioner for Lands; Respondent: Kikuyu Town Council
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1993 of 2000
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Dismissal for Non Attendance, Reinstatement of Suit, Delay in Prosecution, Affidavit Evidence, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Kanai Kamau
Plaintiff
Dayonosious Karomo Ndirangu
Defendant
Commissioner for Lands
Respondent
Kikuyu Town Council
Respondent
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the dismissal order made on 26th February 2016 for non-attendance.
- 2 Whether the plaintiff's suit should be reinstated after a prolonged delay in bringing the application.
- 3 Whether an advocate can competently swear an affidavit on matters best known to the plaintiff.
Ratio Decidendi
The court found that the application to set aside the dismissal and reinstate the suit lacked merit for two principal reasons. First, the affidavit in support was sworn by the advocate rather than the plaintiff, with no disclosure of the source of information for key averments, rendering the evidence insufficient. Second, there was an inordinate and unexplained delay between the plaintiff's alleged discovery of the dismissal in April 2016 and the filing of the application in October 2020. The court concluded that the plaintiff had lost interest in prosecuting the suit, both before and after the dismissal, and that no sufficient cause had been shown to warrant the exercise of the court's...
Court Disposition
application dismissed
Orders
- The application dated 5th October 2020 is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 1993 OF 2000
CHRISTOPHER KANAI KAMAU......................................PLAINTIFF/APPLICANT
VERSUS
DAYONOSIOUS KAROMO NDIRANGU..................DEFENDANT/RESPONDENT
COMMISSIONER FOR LANDS.....................................................1ST THIRD PARTY
KIKUYU TOWN COUNCIL..........................................................2ND THIRD PARTY
RULING
1. This is the notice of motion dated 5th October 2020 brought under section 3A of the Civil Procedure Rules and Article 50 of the Constitution of Kenya, 2010.
2. It seeks orders:
1. Spent.
2. That the honourable court be pleased to set aside the orders made on 26th of February, 2016 dismissing the plaintiff’s suit and all other consequential orders thereto.
3. That the honourable court be pleased to reinstate the plaintiff’s suit.
4. That the application filed herein be heard with due urgency.
5. That the costs of and incidental to this application do abide the result of the suit.
3. The grounds are on the face of the application and are set out in paragraphs (1) to (24).
4. The application is supported by the affidavit of Muendo Festus Muteti, Advocate of the plaintiff/applicant sworn on the 5th October 2020.
5. Though the application is not opposed, there is no explanation as to why the advocate swore the affidavit in support instead of the plaintiff/applicant.
In paragraph 11 of the supporting affidavit, the advocate depones:-
“That on or about April 2016 the plaintiff was plunged into shock and dismay on the realization that the suit herein had been dismissed back in February 2016 for non-attendance”.
The advocate does not disclose the source of his information. Such averments could only be sworn by the plaintiff/applicant and not the advocate.
6. There are also averments in paragraphs 12 to 15 to which the advocate does not state the source of information.
7. I have gone through the record and find that there is a notice of dismissal of suit under order 17 rule (2) (1) and (4) of the Civil Procedure Rules, 2010.
8. The plaintiff/applicant is alleged to have realized the suit had been dismissed in April 2016. This application is dated 5th October 2020. No explanation has been given for the delay in bringing the application. The only conclusion is that the plaintiff has lost interest in prosecuting this suit just as he had lost interest prior to the dismissal.
9. I find no merit in this application and the same is dismissed with no orders as to costs.
It is so ordered.
Dated, signed and delivered in Nairobi on this 18th day of February 2021.
……………………….
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Muiruri for Mr. Muteti for the Plaintiff
No appearance for the Defendant
No appearance for the 1st Third Party
No appearance for the 2nd Third Party.
Phyllis –Court Assistant