[2017] KEELC 3734 (KLR)
The court found that the dismissal of the suit for want of prosecution was premature as the notice of dismissal was not served on the parties. Additionally, the absence of a Land Court Judge in Kakamega from 2015 to the date of the application provided a valid explanation for the delay in prosecuting the suit. The...
Source-derived case information.
- Citation
- [2017] KEELC 3734 (KLR)
- Parties
- Applicant: David Nalundi Lusiche; Respondent: Sheban Lusiche Echesa; Respondent: Mariam Kunaka Walukoya; Respondent: Zakaria Wambani Osore; Respondent: Joshua Lurongo Emitati
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Land Case 291 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application granted
- Judges
- NA Matheka
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Service of Notice, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Nalundi Lusiche
Applicant
Sheban Lusiche Echesa
Respondent
Mariam Kunaka Walukoya
Respondent
Zakaria Wambani Osore
Respondent
Joshua Lurongo Emitati
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution should be set aside.
- 2 Whether notice of dismissal for want of prosecution was properly served on the parties.
- 3 Whether the absence of a Land Court Judge in Kakamega justified the delay in prosecution.
Ratio Decidendi
The court found that the dismissal of the suit for want of prosecution was premature as the notice of dismissal was not served on the parties. Additionally, the absence of a Land Court Judge in Kakamega from 2015 to the date of the application provided a valid explanation for the delay in prosecuting the suit. The court exercised its discretion to set aside the dismissal in the interests of justice, noting that the defendants had not opposed the application.
Court Disposition
application granted
Orders
- The orders issued on 21st April 2015 dismissing the suit for want of prosecution are set aside.
- Costs of this application shall be in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT OF KENYA AT KAKAMEGA
LAND CASE NO. 291 OF 2013
DAVID NALUNDI LUSICHE……………………PLAINTIFF / APPLICANT
- VERSUS -
SHEBAN LUSICHE ECHESA……...…1ST DEFENDANT/ RESPONDENT
MARIAM KUNAKA WALUKOYA…..2ND DEFENDANT/RESPONDENT
ZAKARIA WAMBANI OSORE……….3RD DEFENDANT/RESPONDENT
JOSHUA LURONGO EMITATI…….….4TH DEFENDANT/RESPONDENT
RULING
This notice of motion is dated 20th December 2016 and is brought under Order 12 Rule 7 of the Civil Procedure Rules and Section 1A & 3A of the |Civil Procedure Act, CAP 21 of the Laws of Kenya. The Plaintiff/ Applicant seeks orders as follows;
1. For the setting aside of the orders issued on the 21st April 2015 dismissing this suit for want of prosecution.
2. Costs of this application be in the cause.
The application is supported by the affidavit of the Plaintiff/ Applicant one David Nalundi Lusiche. Mr. Akwala, Advocate for the Applicant submitted that this suit was dismissed for want of prosecution by Honorable Justice Chacha Mwita prematurely and without the knowledge of the parties on the 21st April 2015. The notice os dismissal for want of prosecution was not served on the parties and there has been no Land Court Judge in Kakamega from 2015 to date. The Plaintiff has a strong case against the defendants and the case has high chances of success.
The defendants were served and have failed to attend court.
The court has considered the Plaintiffs application and the submissions therein. The defendants have not opposed the application. It is true that Kakamega has not had an Environment and Land Court Judge until now. I therefore grant the application as prayed.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 22ND DAY OF FEBRUARY 2017.
N.A. MATHEKA
JUDGE