[2018] KEELC 557 (KLR)
The court found that the application for reinstatement was filed promptly, only ten days after the dismissal, and that the reasons provided by counsel for the petitioners—namely, late arrival due to traffic caused by a presidential motorcade—were plausible and not intended to delay or subvert justice. The court...
Source-derived case information.
- Citation
- [2018] KEELC 557 (KLR)
- Parties
- Applicant: Dishon Muthama Nzina & 26 Others; Respondent: The Honourable Attorney General; Respondent: Registrar of Titles; Respondent: The Chief Land Registrar; Respondent: National Land Commission; Respondent: The Chief Registrar of Companies
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Muranga
- Jurisdiction
- Kenya
- Case Number
- ? 4 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Application for Reinstatement of Dismissed Application
- Outcome
- Application for reinstatement allowed.
- Judges
- BC Koech
- Legal Topics
- Reinstatement of Application, Dismissal for Non Attendance, Overriding Objective, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dishon Muthama Nzina & 26 Others
Applicant
The Honourable Attorney General
Respondent
Registrar of Titles
Respondent
The Chief Land Registrar
Respondent
National Land Commission
Respondent
The Chief Registrar of Companies
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Reinstatement of Dismissed Application
Legal Issues
- 1 Whether the application dismissed for non-attendance should be reinstated.
- 2 Whether the mistake of counsel in arriving late constitutes sufficient cause for reinstatement.
- 3 Whether substantive justice requires setting aside the dismissal order.
Ratio Decidendi
The court found that the application for reinstatement was filed promptly, only ten days after the dismissal, and that the reasons provided by counsel for the petitioners—namely, late arrival due to traffic caused by a presidential motorcade—were plausible and not intended to delay or subvert justice. The court emphasized the overriding objective to do substantive justice as enshrined in Article 159(2)(d) of the Constitution. Since the application was unopposed and there was no evidence of intentional default, the court exercised its discretion to set aside the dismissal and reinstate the application, directing that it be listed for hearing within ten days.
Court Disposition
Application for reinstatement allowed.
Orders
- The application dated 30/7/2018 is reinstated and to be listed for hearing within the next 10 days, failing which it shall stand dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
69 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MURANG’A
PETITION NO 4 OF 2017
IN THE MATTER OF : ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS IN ARTICLES 2,10,19,20,21,22,23,27,35,40(1), 47 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA.
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLES 67
AND
IN THE MATTER OF: THE NATIONAL LAND COMMISSION ACT
AND
IN THE MATTER OF: MATHENGETA FARMERS COMPANY LIMITED
AND
IN THE MATTER OF: THE PETITION OF DISHON MUTHAMA NZINA & 26 OTHERS
BETWEEN
DISHON MUTHAMA NZINA 1STPETITIONER
JOSEPH NJOROGE WAWERU 2ND PETITIONER
SAMUEL M. MUNGUTI 3RD PETITIONER
VERONICAH WANGARI KARANJA 4TH PETITIONER
PHILIP MAKAU MULWA 5TH PETITIONER
SAMUEL KIMANI NDUBU 6TH PETITIONER
PHELIS NDUNGE KITUUNGO 7TH PETITIONER
MBATHA MUEMA 8TH PETITIONER
LUCY WAITHERA KINYENI 9TH PETITIONER
MUTUKU KIKONDE 10TH PETITIONER
GRACE MBOKA 11TH PETITIONER
NG’ANG’A MUTAHI 12TH PETITIONER
JOHN MUCHINA NGUGI 13TH PETITIONER
MARY WANJIRU WAKABA 14TH PETITIONER
BETH WANJIKU WAKABA 15TH PETITIONER
SAMUEL KAMAU CHOMBA 16TH PETITIONER
MARY NDUNGE 17TH PETITIONER
LITHA MWELU KAHILIRO 18TH PETITIONER
MUKII MUTUKU 19TH PETITIONER
HANNAH WAITHERA 20TH PETITIONER
SIMON MWANGI GATERE 21ST PETITIONER
JOSEPH MUSKA MATHA 22ND PETITIONER
SIMON NDUNGU 23RD PETITIONER
WILSON KATHINI KABUTI 24TH PETITIONER
TERESIA NJERI NDUNG’U 25TH PETITIONER
MILICAH MUTHONI NDUNG’U 26TH PETITIONER
JOSEPH NJUGUNA 27TH PETITIONER
VS
THE HONOURABLE ATTORNEY GENERAL 1ST RESPONDENT
REGISTRAR OF TITLES 2ND RESPONDENT
THE CHIEF LAND REGISTRAR 3RD RESPONDENT
NATIONAL LAND COMMISSION 4TH RESPONDENT
THE CHIEF REGISTRAR OF COMPANIES 5TH RESPONDENT
AND
FRANCIS NGIGI 1ST INTERESTED PARTY
DANIEL MWAURA 2NDINTERESTED PARTY
JACOB MUTUA 3RDINTERESTED PARTY
RULING
1. On the 11/10/18 this matter was placed before the Judge for the hearing of the application dated 30/7/18. All the parties and their Counsels were absent. The date had been mutually taken by consent on 20/9/18. The Court dismissed the application for non-attendance/want of prosecution.
2. On 1/11/18 the Petitioners filed a Notice of Motion seeking the reinstatement of the application of 30/7/18 and the setting aside of the dismissal orders issued by this court on 20/9/18. The application is supported by the grounds attached thereto and the Supporting Affidavit of Elizabeth Were Advocate for the Petitioners sworn on 1/11/18. In it she deponed that she arrived late to Court due to a traffic snarl up at Murang’a which was occasioned by high traffic which included presidential motorcades which was attending the burial of a prominent musician namely John Kamaru. She urged the Court to allow the application and take into consideration the fact that the Petitioners have been ready to prosecute the petition and the prayer requesting the list of members from the Registrar General of Companies was vital to its case.
3. On 21/11/18 Mr. Wetaba for the Petitioners argued the application orally and relied on the aforementioned supporting affidavit sworn by Learned Counsel Elizabeth Were. He prayed that the mistake of Counsel should not be visited on the clients.
4. The application is not opposed by the Respondents. They were duly served as stated in the affidavit of service dated 19/11/18.
5. I have considered the application in totality and hereby allow it on the following grounds;
a. The overriding objective of the Court is to do substantive justice to litigants. See Article 159(2) (d).
b. The application was filed without delay i.e. 10 days after dismissal.
c. The reasons given by Counsel are plausible. I have no reason to doubt Counsel for the Petitioners and I am satisfied that her arrival to Court late was not intentional nor intended to subvert or delay the course of justice.
d. The application is unopposed.
6. I therefore direct that the application dated 30/7/2018 be listed for hearing within the next 10 days in default it shall dismissed.
7. I make no orders as to the costs.
DELIVERED, DATED AND SIGNED AT MURANG’A THIS 22ND NOVEMBER 2018
J G KEMEI
JUDGE
Ruling read in open Court in the presence of;
Nganga HB for Ms. Were for Petitioners/Applicants (1st – 20th)
1st – 5th Respondents – All Absent
Ms.Irene and Ms Njeri, Court Assistants