[2018] KEELC 2170 (KLR)
The court found that the Plaintiff failed to provide sufficient evidence to justify the reinstatement of the suit. The Plaintiff's advocate did not annex any correspondence or letters to support the claim that the court file was missing or that he had made efforts to trace it. The court was not convinced by the...
Source-derived case information.
- Citation
- [2018] KEELC 2170 (KLR)
- Parties
- Plaintiff: David Musyoka Mutavi; Defendant: John Wambua Mutune; Defendant: Thaddeus Mutune Nzivo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 138 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Suit
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Notice, Possession and Occupation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Musyoka Mutavi
Plaintiff
John Wambua Mutune
Defendant
Thaddeus Mutune Nzivo
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the Plaintiff has shown sufficient cause for reinstatement of the suit dismissed for want of prosecution.
- 2 Whether the Plaintiff's advocate was properly served with the Notice to show cause.
- 3 Whether the delay in prosecuting the suit was justified.
Ratio Decidendi
The court found that the Plaintiff failed to provide sufficient evidence to justify the reinstatement of the suit. The Plaintiff's advocate did not annex any correspondence or letters to support the claim that the court file was missing or that he had made efforts to trace it. The court was not convinced by the explanation regarding the delayed receipt of the Notice to show cause, noting that it was unlikely for a letter posted in October from Machakos to take a month to reach Nairobi. The suit had remained dormant since 2010, and in the absence of any credible explanation or evidence of diligence on the part of the Plaintiff, the court held that the dismissal for want of prosecution was...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 30th November, 2017 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 138 OF 2001
DAVID MUSYOKA MUTAVI....................................................PLAINTIFF
VERSUS
JOHN WAMBUA MUTUNE .........................................1ST DEFENDANT
THADDEUS MUTUNE NZIVO....................................2ND DEFENDANT
RULING
1. The Application before me is the one dated 30th November, 2017 in which the Plaintiff is seeking for the reinstatement of the suit which was dismissed by this court on 30th November, 2017.
2. The Application is premised on the grounds that the court file has always been missing; that the Plaintiff’s advocate was not aware of the Notice to show cause why the suit should not be dismissed for want of prosecution and that the said advocate was not served with the Notice to show cause.
3. According to the Plaintiff’s advocate, by the time the Notice to show cause was received by him, the date to show cause had already passed; that his failure not to attend court when the matter when the matter came up for dismissal was not deliberate and that the suit should be reinstated and the Plaintiff be given an opportunity to prosecute it.
4. The Plaintiff’s advocate finally deponed that the suit involves land on which the Plaintiff has been in possession and occupation for over twenty four (24) years and that he shall suffer irreparable loss unless the suit is heard on merit.
5. The Application was not opposed by the Defendant. The Applicant relied on the Affidavit and did not file submissions.
6. The record shows that this matter was last in court on 9th June, 2010, it was not until 12th October, 2017 that the court issued to the Plaintiff and the Defendants’ advocates a Notice to show cause why the matter should not be dismissed for want of prosecution. The Notice to show cause was personally served on the Defendants’ advocate’s law firm, which is based in Machakos on 18th October, 2017. The Plaintiff’s advocate was served with the Notice to show cause by post.
7. The Plaintiff’s counsel has deponed that he received the Notice to show cause via post on 24th November, 2017. Other than his official stamp, there is no evidence from the postal office to show that it was not until 24th November, 2017 that the said Notice to show cause was put in his postal address. Indeed, it is inconceivable that a letter which is posted in the month of October from Machakos can take a whole month to reach a recipient in Nairobi.
8. In any event, as I have stated above, this matter was last in court in the year 2010. The last pleading that the Plaintiff’s advocate filed was the Statement of agreed issues dated 22nd October, 2010. Although counsel has stated that the file could not be traced in the registry, he has not annexed on his supporting even a single letter in which he requested for the said file.
9. In the absence of a letter complaining about the allegedly missing file, I find that the suit remained dormant since the year 2010 and was ripe for dismissal for want of prosecution on 3rd November, 2017.
10. For those reasons, I find that the Plaintiff has not made out a good case for the reinstatement of the suit. I therefore dismiss the Notice of Motion dated 30th November, 2017 with no order as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 31ST DAY OF JULY, 2018.
O.A. ANGOTE
JUDGE