[2019] KEELC 4104 (KLR)
The court found that the application to set aside the dismissal and reinstate the appeal was filed after an inordinate and unexplained delay of two years. The reasons advanced for the delay were unconvincing, and the applicant was found to have been indolent. The court applied the principles that it is the duty of a...
Source-derived case information.
- Citation
- [2019] KEELC 4104 (KLR)
- Parties
- Appellant: Elijah Odari Gwini; Respondent: Laban Kipchoge; Respondent: Priscilla Andia Sote; Respondent: Daniel Mbole
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 12 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- application dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Reinstatement of Appeal, Dismissal for Want of Prosecution, Inordinate Delay, Mistake of Counsel
- 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
Elijah Odari Gwini
Appellant
Laban Kipchoge
Respondent
Priscilla Andia Sote
Respondent
Daniel Mbole
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the court should set aside the dismissal order issued on 22/4/2015 and reinstate the appeal.
- 2 Whether the delay in filing the application for reinstatement was inordinate and inexcusable.
- 3 Whether the mistake of counsel is a sufficient ground to reinstate the appeal.
Ratio Decidendi
The court found that the application to set aside the dismissal and reinstate the appeal was filed after an inordinate and unexplained delay of two years. The reasons advanced for the delay were unconvincing, and the applicant was found to have been indolent. The court applied the principles that it is the duty of a party to prosecute their case diligently and that prolonged, inexcusable delay is not a sufficient ground for reinstatement. The court also noted that justice must be balanced for both parties and that the applicant has alternative remedies against previous counsel if aggrieved. Consequently, the application lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 22nd May 2017 is dismissed with costs.
- No reinstatement of the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC APPEAL CASE NO. 12 OF 2018
ELIJAH ODARI GWINI...................................APPELLANT/APPLICANT
VERSUS
LABAN KIPCHOGE
PRISCILLA ANDIA SOTE
DANIEL MBOLE.................................................................RESPONDENTS
RULING
The application is dated 22nd May 2017 and is brought under section 3 and 3A of the Civil Procedure Act and order 42 rule 1 of the Civil Procedure Rules seeking the following orders;
1. That this honourable court be pleased to set aside the orders issued on 22/4/2015.
2. That this appeal filed vide a memorandum of appeal dated 27th day of February, 2013 be reinstated.
3. That costs be in the cause.
It is grounded upon the annexed affidavit of Elijah Odari Gwini and on the following grounds that the advocate on record did not communicate on time to the appellant/applicant that the matter was set for dismissal and that the mistake of counsel should not be visited upon the appellant. The appellant/applicant ought not be condemned unheard. The appellant/applicant has an arguable appeal with high chances of success. The appellant/applicant will suffer irreparable loss if the said orders are not granted. The appellant /applicant has acted reasonably and properly in making this application.
The application dated 22nd May, 2017 was opposed on the grounds that same is belated having been brought after two years which delay is inordinate. The reasons advanced by the applicant to back the application are insufficient as there was no effort by the applicant to seek court direction as against the deceased respondents. By the applicant’s persistent habit of coming up every time to make similar applications to explain inaction on his party by blaming others in the past, the present application become vexations and gross abuse of the court’s process. The law does not aid the indolent and litigation must come to an end. The applicant has a remedy against his previous counsel under Article 22 and 23 of the Constitution of Kenya 2010 if indeed he was wronged.
This court has considered the application and the submissions therein. I have perused the court file and find that this suit was dismissed on 22nd April 2015. It is was not until the 22nd May 2017 that the present application was filed. I find that there is inordinate delay in filing this application and the same is an afterthought. Reasons advance for the delay are not convincing. The applicant has been indolent and is guilty of inordinate delay.
In the case of Utalii Transport Company Ltd & 3 Others vs 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 20TH DAY OF MARCH 2019.
N.A. MATHEKA
JUDGE