[2018] KEELC 1664 (KLR)
The court found that both parties were aware of the notice of dismissal and that the applicant's explanation for the delay—receiving the notice late and work commitments in Nairobi—was inexcusable. Applying the principles from Utalii Transport Company Ltd & 3 Others v NIC Bank & Another and Ivita v Kyumbu, the court...
Source-derived case information.
- Citation
- [2018] KEELC 1664 (KLR)
- Parties
- Applicant: Edward Mukari Muchere; Respondent: Justus Welemba Omusikoyo; Respondent: Fredrick Omondi Okoth
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 182 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Judicial Discretion, Delay and Excuse, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Mukari Muchere
Applicant
Justus Welemba Omusikoyo
Respondent
Fredrick Omondi Okoth
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for reinstatement of the suit dismissed for want of prosecution.
- 2 Whether the delay in bringing the application for reinstatement is excusable.
- 3 Whether justice would be served by reinstating the suit.
Ratio Decidendi
The court found that both parties were aware of the notice of dismissal and that the applicant's explanation for the delay—receiving the notice late and work commitments in Nairobi—was inexcusable. Applying the principles from Utalii Transport Company Ltd & 3 Others v NIC Bank & Another and Ivita v Kyumbu, the court held that the applicant failed to demonstrate sufficient grounds for reinstatement. The delay was deemed prolonged and unjustified, and the interests of justice did not warrant reopening the suit. Consequently, the application lacked merit and was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application for reinstatement is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 182 OF 2012
EDWARD MUKARI MUCHERE...............PLAINTIFF/APPLICANT
VERSUS
JUSTUS WELEMBA OMUSIKOYO
FREDRICK OMONDI OKOTH.....DEFENDANTS/RESPONDENTS
RULING
The application is dated 7th October 2018 and seeks the following orders;
1. That the service of this application be dispensed with in the first instance.
2. That this honourable court be pleased to reinstate this case.
3. That costs of this application be provided for.
The applicant submitted that, this case was dismissed on 19th July, 2017 by Lady Justice N.A.Matheka, Judge in his absence for want of prosecution.That this was because he received a notice of dismissal late hence failing to do the necessary action.That he stays in Nairobi by virtue of his daily commitments to earn a living.That this matter involves land parcels E. WANGA/ISONGO/3110 and 3109 which have an unresolved dispute.That for justice to be done this honourable court be pleased to reinstate the case to enable them sort out their issues.
The respondent submitted that, the applicant has not presented enough material to enable this court exercise its discretion in his favour. That there is inordinate delay in bringing the said application. That the applicant does not have good grounds of not prosecuting this case that was filed way back in 2012. That the application is incompetent, frivolous, vexatious and an abuse of the due process of this court.
This court has considered the application and the submissions herein. The application is based on the grounds that, this was because he received a notice of dismissal late hence failing to do the necessary action. That he stays in Nairobi by virtue of his daily commitments to earn a living.It is not in dispute that both parties were aware of the notice sent by the court. I find the reason given inexcusable and I reject it.
In the case of Utalii Transport Company Ltd & 3 Others v NIC Bank & Another (2014) eKLR, the court held that it is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court. The decision on whether the suit should be reinstated for trial is a matter of justice and it depends on the facts of the case. In Ivita v Kyumbu (1984) KLR 441,Chesoni J as he then was, stated that the test is whether the delay is prolonged and inexcusable and if justice will be done despite the delay. Justice is justice for both the plaintiff and the defendant. I find this application has no merit and I dismiss it with costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 25TH DAY OF SEPTEMBER 2018.
N.A. MATHEKA
JUDGE