[2021] KEELC 4363 (KLR)
The court found that there was no opposition to the application and no evidence that the plaintiffs were aware of the hearing date. In line with established principles that courts should decide matters on their merits and not punish parties for mistakes of counsel, the court exercised its discretion to set aside the...
Source-derived case information.
- Citation
- [2021] KEELC 4363 (KLR)
- Parties
- Plaintiff: Dennis Nyamangaka Maubi; Plaintiff: Edward Akama Maubi; Plaintiff: George Bosire; Plaintiff: Lydia Kemunto; Plaintiff: Jane Moraa Maubi; Defendant: Joseph Maera Okeyo; Defendant: Gladys Mose
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 255 of 2014
- Procedural Posture
- Notice of Motion / Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application allowed; suit reinstated
- Legal Topics
- Setting Aside Orders, Dismissal for Want of Prosecution, Discretion of Court, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Nyamangaka Maubi
Plaintiff
Edward Akama Maubi
Plaintiff
George Bosire
Plaintiff
Lydia Kemunto
Plaintiff
Jane Moraa Maubi
Plaintiff
Joseph Maera Okeyo
Defendant
Gladys Mose
Defendant
Procedural Posture
Notice of Motion / Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order of dismissal for want of prosecution should be set aside.
- 2 Whether the plaintiffs were aware of the hearing date prior to dismissal.
Ratio Decidendi
The court found that there was no opposition to the application and no evidence that the plaintiffs were aware of the hearing date. In line with established principles that courts should decide matters on their merits and not punish parties for mistakes of counsel, the court exercised its discretion to set aside the order of dismissal for want of prosecution. The application was therefore allowed, and the suit reinstated for hearing.
Court Disposition
application allowed; suit reinstated
Orders
- The order of dismissal for want of prosecution made on 26th May 2016 is set aside.
- The suit is reinstated and shall be set down for hearing on merit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISII
ELC CASE NO. 255 OF 2014
DENNIS NYAMANGAKA MAUBI.........................................................................1ST PLAINTIFF
EDWARD AKAMA MAUBI....................................................................................2ND PLAINTIFF
GEORGE BOSIRE...................................................................................................3RD PLAINTIFF
LYDIA KEMUNTO...................................................................................................4TH PLAINTIFF
JANE MORAA MAUBI............................................................................................5TH PLAINTIFF
(All suing in their capacity as the administrators of the estate of Maubi Osoro Gechure deceased)
VERSUS
JOSEPH MAERA OKEYO..................................................................................1ST DEFENDANT
GLADYS MOSE...................................................................................................2ND DEFENDANT
RULING
INTRODUCTION
1. What is before me is the Defendants’ Notice of Motion dated 18th August 2020 seeking to set aside the order of dismissal of the suit for want of prosecution made on 26th May 2016 and that the suit be set down for hearing on merit.
2. The Application is based on grounds stated on the Notice of Motion and the Supporting Affidavit of Jane Moraa Maubi sworn on the 18th August 2020. In the said affidavit she explains that the Plaintiffs were not aware that the suit had been set down for hearing as their former advocate did not inform them of the hearing date.
3. Strangely, the same Jane Moraa Maubi has sworn a Replying Affidavit on 18th August 2020 in opposition to the Application.
4. The Application was canvassed by way of written submissions but only counsel for the Plaintiffs/Applicants filed his submissions in which he urged the court to allow the Application. He cited the cases of Gold Lida Limited v NIC Bank Limited and 2 Others (2018) eKLRand Philip Chemwolo & Another v Augustine Kubede (1982-88)KAR 103 in which the court took the view that the courts exist for purposes of deciding the rights of the parties and not for purposes of imposing discipline and proceeded to allow application to set aside orders of dismissal.
ANALYSIS AND DETERMINATION
5. In the instant suit since there is really no opposition to the Application and there is nothing to suggest that the Plaintiffs were aware of the hearing date, I am inclined to exercise my discretion in favour of the Applicants in line with the principle in the above cited authorities.
6. The upshot is that the Application has merit and the same is granted in terms of prayers 2 and 3 of the Notice of Motion.
The costs of the Application shall be in the cause.
Dated, signed and delivered at Kisii this 17th day of February 2021.
J.M ONYANGO
JUDGE.