[2018] KEELC 789 (KLR)
The court found that the plaintiff's failure to attend court was attributed to the mistake of his previous advocates. Exercising its discretion under Order 12 rule 7 of the Civil Procedure Rules and guided by Article 159 of the Constitution to do substantive justice, the court granted the application for...
Source-derived case information.
- Citation
- [2018] KEELC 789 (KLR)
- Parties
- Plaintiff: David Wahome Mbeu; Defendant: Catherine Wanjiru Maina; Defendant: Mwangi Maina
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Muranga
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 233 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Suit After Dismissal for Non Attendance
- Outcome
- application for reinstatement of suit allowed with conditions
- Judges
- BC Koech
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Interlocutory Judgment, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Wahome Mbeu
Plaintiff
Catherine Wanjiru Maina
Defendant
Mwangi Maina
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement of Suit After Dismissal for Non Attendance
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance and want of prosecution.
- 2 Whether the mistake of the plaintiff's advocate is sufficient ground to set aside the dismissal order.
- 3 Whether the plaintiff will suffer injustice if the suit is not reinstated.
Ratio Decidendi
The court found that the plaintiff's failure to attend court was attributed to the mistake of his previous advocates. Exercising its discretion under Order 12 rule 7 of the Civil Procedure Rules and guided by Article 159 of the Constitution to do substantive justice, the court granted the application for reinstatement of the suit. However, the court imposed a condition that the matter must be listed for hearing within 14 days from the date of the ruling, failing which the suit would stand dismissed. The court emphasized the need to balance the right to be heard with the efficient administration of justice and the avoidance of undue delay.
Court Disposition
application for reinstatement of suit allowed with conditions
Orders
- The suit is reinstated on condition that it be listed for hearing within 14 days from the date of this ruling, failing which it stands dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MURANG’A
ELC NO. 233 OF 2017
DAVID WAHOME MBEU................................................PLAINTIFF
VS
CATHERINE WANJIRU MAINA.........................1ST DEFENDANT
MWANGI MAINA..................................................2ND DEFENDANT
RULING
1. The Plaintiff filed this case against the Defendants on 2/7/14 interalia an order for permanent injunction and a cancellation of title in the name of the 2nd Defendant.
2. The Defendant failed to enter appearance nor file any defence and the Plaintiff obtained interlocutory judgment on the 24/9/14.
3. The Court issued a notice to show cause on the 7/3/18. According to the affidavit on record and dated the 27/4/18 the same was served on the Plaintiffs advocate Messrs Thuku and Associates.
4. On the 3/5/18 neither the Plaintiff nor his advocate was present in Court and the Court dismissed the matter for non-attendance and want of prosecution.
5. On the 9/5/18 the Plaintiff filed an application under certificate of urgency and urged the Court to reinstate the suit so that it may be heard on its merits. He attributed the non attendance of Court on the 3/5/18 to the fault of his previous advocates Messrs Thuku & Associates and pleaded with the Court not to visit the mistake of Advocate on him. That no injustice shall be occasioned to the respondents if the case is reinstated. Further that he has an arguable case with high chance of success.
6. I have read and considered the submissions by the Plaintiff filed on the 2/7/18.
7. Having reviewed the matter in totality, the Plaintiff obtained interlocutory judgment in 2014 and to date the matter has not been listed for formal hearing. Despite the Court issuing a notice to show cause why the suit should not be dismissed, the Plaintiff failed to do so. He has attributed this failure to the mistake of his Advocates.
8. The power vested in the trial Court to set aside the order dismissing the suit for non-attendance is contained in the provisions of Order 12 rule 7 of the Civil Procedure Rules. It is a discretionary power that is exercised by the Court.
9. Going by the explanations given by the Plaintiff and guided by Article 159 of the Constitution to do substantive justice, I grant the application on condition that the matter be listed for hearing within the next 14 days from the date hereof in default of which it stands dismissed.
DELIVERED, DATED AND SIGNED AT MURANG’A THIS 14TH NOVEMBER 2018
J.G. KEMEI
JUDGE
Delivered in open Court in the presence of;
Thuku HB Mburu Machua for the Plaintiff
1st and 2nd Defendant – Absent
Irene and Njeri, Court Assistants