[2018] KEELC 1887 (KLR)
The court found that although the applicants and their advocate arrived late, their failure to attend was inadvertent and not intended to delay or obstruct the course of justice. The respondents did not demonstrate any prejudice they would suffer if the suit was reinstated. The court exercised its discretion under...
Source-derived case information.
- Citation
- [2018] KEELC 1887 (KLR)
- Parties
- Applicant: Douglas Kariuki Macharia; Applicant: Milka Muthoni Macharia; Applicant: Mary Wangare Macharia; Respondent: James Macharia Kariuki; Respondent: Peter Irungu Moses
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Muranga
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 472 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed with conditions
- Judges
- BC Koech
- Legal Topics
- Dismissal for Non Attendance, Reinstatement of Suit, Judicial Discretion, Throw Away Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Douglas Kariuki Macharia
Applicant
Milka Muthoni Macharia
Applicant
Mary Wangare Macharia
Applicant
James Macharia Kariuki
Respondent
Peter Irungu Moses
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the dismissal order for non-attendance and reinstate the suit.
- 2 Whether the applicants have provided sufficient reason for their absence when the matter was called out.
- 3 Whether the respondents would suffer prejudice if the suit is reinstated.
Ratio Decidendi
The court found that although the applicants and their advocate arrived late, their failure to attend was inadvertent and not intended to delay or obstruct the course of justice. The respondents did not demonstrate any prejudice they would suffer if the suit was reinstated. The court exercised its discretion under Order 12 rule 7 of the Civil Procedure Rules to set aside the dismissal and reinstate the suit, subject to the applicants paying throw away costs to the respondents.
Court Disposition
application allowed with conditions
Orders
- The dismissal order of 17/4/2018 is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MURANG’A
ELC NO. 472 OF 2017
DOUGLAS KARIUKI MACHARIA - 1ST PLAINTIFF/APPLICANT
MILKA MUTHONI MACHARIA - 2ND PLAINTIFF/ APPLICANT
MARY WANGARE MACHARIA - 3RD PLAINTIFF/ APPLICANT
VS
JAMES MACHARIA KARIUKI - 1ST DEFENDANT/RESPONDENT
PETER IRUNGU MOSES - 2ND DEFENDANT/RESPONDENT
RULING
1. On the 18/12/2017 this matter was certified ready for hearing and by consent of the parties a hearing date was fixed for the 17/4/2018. Come the 17/4/2018 all the parties and their advocates were absent in Court when the matter was called out for hearing. The Court proceeded to dismiss the matter for non-attendance. It is this dismissal that has triggered the Notice of Motion dated the 20 /4/2018 seeking orders to set aside the dismissal orders and reinstate the suit.
2. The Application is based on the grounds annexed thereto and the affidavit of the Karuga Wandai, Advocate and the 3rd Applicant both sworn on the 20/4/2018. Mr. Karuga stated that he arrived in Court around 9. 15 am and found the Court in session and his matter had been dismissed. Mary Wangari Macharia deponed that she and her co-plaintiffs attended Court and also arrived at 9. 15 am and did not hear their matter called until later when they learned from the Advocate that the matter had been dismissed prior to their arrival.
3. The application has been opposed by the 2nd Respondent who has deponed via his Replying affidavit sworn on the 25/5/2018 that the application is meant to delay the case and obstruct the end of justice; that the application is unmeritorious and is an abuse of the Court because the Applicants were aware of the hearing date; The Applicants have not demonstrated to the Court that they were present when the matter was called out in Court and neither have they advanced plausible reasons to warrant review or variation of the orders issued on 17/4/2018.
4. The power vested in the trial Court to set aside an 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.
5. I entirely concur with the Respondents that neither the Applicants nor their advocate has explained the reasons why they came to Court late. It is matter for judicial notoriety that Court sittings begin at 9 am. Coming to Court at 9. 15 am as the Applicants and their advocate did is taking a risk of their matter being dismissed on account of non-attendance and or want of prosecution, like it happened in this instance.
6. The Respondents have averred that the Applicants conduct is such that is meant to delay the case and obstruct the ends of justice. No evidence has been adduced to support this averment. I am satisfied that the failure to attend Court by counsel and the Applicants was inadvertent and was not intended to delay or obstruct the course of justice. The Respondents have also not explained to the Court the prejudice that they stand to suffer if the matter is reinstated so that each party may have their day in Court.
7. The justice of this application is to allow it but on condition that the Applicants will pay to the Respondents costs in the sum of Kshs 10,000/- as throw away costs.
DELIVERED, DATED AND SIGNED AT MURANG’A THIS 20TH SEPTEMBER 2018
J.G. KEMEI
JUDGE
Delivered in open Court in the presence of;
Mr. Githinji HB for Mr Karuga Wandai for the 1st, 2nd & 3rd Plaintiffs/Applicants
Mr Peter Muthoni HB for Mr Kinuthia for the 1st and 2nd Defendants/Respondents
Ms.Irene and Ms Njeri, Court Assistant