[2018] KEELC 570 (KLR)
The court held that since the timelines set for filing the list and bundle of documents had expired and the suit was deemed automatically dismissed, there was no suit before the court at the time of the application. The proper procedure would have been to first seek reinstatement of the suit before seeking leave to...
Source-derived case information.
- Citation
- [2018] KEELC 570 (KLR)
- Parties
- Applicant: Dismas Wamalwa; Respondent: Jamin Mulongo Manana
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 106 of 2014
- Procedural Posture
- Land Case / Ruling on Application for Leave to File Documents Out of Time
- Outcome
- application struck out with costs to the defendant
- Judges
- FM Njoroge
- Legal Topics
- Leave to File Documents Out of Time, Reinstatement of Suit, Dismissal for Want of Prosecution
- 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
Dismas Wamalwa
Applicant
Jamin Mulongo Manana
Respondent
Procedural Posture
Land Case / Ruling on Application for Leave to File Documents Out of Time
Legal Issues
- 1 Whether the plaintiff/applicant should be granted leave to file and serve the list of documents out of time.
- 2 Whether the suit was properly before the court at the time of the application.
Ratio Decidendi
The court held that since the timelines set for filing the list and bundle of documents had expired and the suit was deemed automatically dismissed, there was no suit before the court at the time of the application. The proper procedure would have been to first seek reinstatement of the suit before seeking leave to file documents out of time. As the suit had not been reinstated, the application for leave was not merited and was accordingly struck out with costs to the defendant.
Court Disposition
application struck out with costs to the defendant
Orders
- The application dated 24th September, 2018 is struck out with costs to the defendant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 106 OF 2014
DISMAS WAMALWA.......................................PLAINTIFF/APPLICANT
VERSUS
JAMIN MULONGO MANANA...............DEFENDANT/RESPONDENT
RULING
1. The application dated 24th September, 2018 prays for the orders that leave be granted to the plaintiff/applicant to file and serve the list of documents out of time. He also prays for costs be in cause.
2. The application is supported by the affidavit of the applicant sworn on 24/9/2018.
3. The plaintiff/applicant filed his submissions on 22/10/2018and the defendant/respondent on 28/10/2018
Determination
4. On 31st July 2018this court reinstated the plaintiff’s suit which stood dismissed for want of prosecution on the 21stday with effect from 31/7/2018. The list and copies of documents were filed on 22nd August 2018. The plaintiff appears to appreciate that the suit stood dismissed as at that date. He argues that the 21 days granted for the filing of the list and bundle of documents expired on 21/9/2018 and that it is in the interests of justice that he be granted leave to file and serve the list and documents out of time.
5. The defendant’s response is that by 22/8/2018 there was no suit the time granted having expired and that there is no ex parte judgment ordered and the orders sought should not be granted.
6. It is true that there was no ex parte judgment entered against any party in this suit. The timelines set by this court expired before the actions specified were undertaken by the plaintiff hence his suit was deemed as automatically dismissed. An order different from the ones sought now in prayer (2) should have been sought first before leave to file and serve the documents out of time was sought.
7. As things stand now, there is still no suit as it has not been reinstated. The second prayer is therefore also not merited. I therefore strike out the application dated 4/9/2018 with costs to the defendant.
Dated, signed and delivered at Kitale on this 28thday of November, 2018.
MWANGI NJOROGE
JUDGE
28/11/2018
Coram
Before - Hon. Mwangi Njoroge Judge
Court Assistant: Picoty
Dismas Wamalwa present in person
N/A for the respondent
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
28/11/2018