[2023] KEELC 17687 (KLR)
The court found that, although the applicant's counsel failed to attend court on April 18, 2023 due to reliance on an incomplete online cause list, it was in the interest of justice to set aside the dismissal order. The court exercised its discretion under the Civil Procedure Rules, noting that the applicant had...
Source-derived case information.
- Citation
- [2023] KEELC 17687 (KLR)
- Parties
- Applicant: Wako Dabasso; Respondent: Abduba Har Ngalgalo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E011 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application allowed
- Judges
- AK Bor
- Legal Topics
- Setting Aside Orders, Dismissal for Non Attendance, Review of Security Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wako Dabasso
Applicant
Abduba Har Ngalgalo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the application dated April 4, 2023 for want of prosecution should be set aside.
- 2 Whether reliance on the online cause list constituted sufficient reason for non-attendance by the applicant's counsel.
Ratio Decidendi
The court found that, although the applicant's counsel failed to attend court on April 18, 2023 due to reliance on an incomplete online cause list, it was in the interest of justice to set aside the dismissal order. The court exercised its discretion under the Civil Procedure Rules, noting that the applicant had provided a plausible explanation for the non-attendance and had acted promptly in seeking to set aside the order. The court balanced the need for expeditious disposal of cases with the right to be heard, and determined that the applicant should not be shut out from prosecuting his application due to an honest mistake by counsel. However, the respondent was awarded costs to...
Court Disposition
application allowed
Orders
- The order of April 18, 2023 dismissing the application dated April 4, 2023 is set aside.
- The application dated April 4, 2023 is reinstated for hearing.
Full Case Text
Judgment text and source record
19 paragraphs
Dabasso v Ngalgalo (Environment and Land Miscellaneous Application E011 of 2022) [2023] KEELC 17687 (KLR) (29 May 2023) (Ruling)
Neutral citation: [2023] KEELC 17687 (KLR)
Republic of Kenya
In the Environment and Land Court at Nanyuki
Environment and Land Miscellaneous Application E011 of 2022
AK Bor, J
May 29, 2023
Between
Wako Dabasso
Applicant
and
Abduba Har Ngalgalo
Respondent
Ruling
1. What falls for determination is the application dated April 20, 2023 seeking to set aside the order this court made on April 18, 2023 dismissing the application dated April 4, 2023 for want of prosecution. The application is made on the grounds that on April 18, 2023 the Applicant’s advocate relied on an online cause list which did not list the matter for hearing on that day. The Applicant swore the affidavit in support of the application and annexed the cause list for April 18, 2023 while averring that the online cause list did not show that the matter was coming up on that day.
2. The Respondent filed a replying affidavit opposing that application, and averred that the Applicant was the 2nd defendant in Nanyuki CMCC No 86 of 2019 in which a judgment was delivered on December 14, 2022. He made an application and this court granted him stay of execution on condition that he deposited security in the sum of Kshs 500,000/=. He brought the application dated April 4, 2023 seeking review of the orders the court made for the furnishing of security. The Respondent pointed out that it was the Applicant who brought the application which was given the date of April 18, 2023 after which they served the Respondent. He contended that checking the online cause list was not enough and that the Applicant’s counsel should have joined the court proceedings to confirm the position regarding their matter.
3. Looking at the court records, the application dated April 4, 2023 came up on April 6, 2023 when the court directed the Applicant to serve it for inter partes hearing on April 18, 2023. The Applicant did not attend court on April 18, 2023 and the Respondent applied for the dismissal of the application. The court dismissed that application. The Applicant’s counsel explained that he failed to attend court on April 18, 2023 because the online cause list for that day did not contain this matter.
4. The court has considered the application dated April 20, 2023 and is satisfied that it is in the interest of justice to set aside the order of April 18, 2023 dismissing the application dated April 4, 2023. The Respondent is awarded the costs of that application.
DELIVERED VIRTUALLY AT NANYUKI THIS 29TH DAY OF MAY 2023. K. BORJUDGEIn the presence of:**Mr. Robin Bundi for the Applicant**Mr. Nderitu Gichuki for the RespondentMs. Stella Gakii – Court Assistant