[2018] KEELC 956 (KLR)
The court exercised its discretion to set aside the orders made on 2nd May, 2018, finding that the withdrawal of the petition was based on the advocate's view that the issues could be litigated as an ordinary suit. However, in the interest of justice and access to justice, the court determined that the petition...
Source-derived case information.
- Citation
- [2018] KEELC 956 (KLR)
- Parties
- Petitioner: Esther Chesang’ Bargochut; Respondent: Kurgat Arap Birir & 13 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 7 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Application to Set Aside Consent Order and Reinstate Petition
- Outcome
- Application allowed; proceedings and consent order of 2nd May, 2018 set aside; petition reinstated for hearing.
- Judges
- MN Kullow
- Legal Topics
- Setting Aside Consent Orders, Reinstatement of Petition, Withdrawal of Petition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Chesang’ Bargochut
Petitioner
Kurgat Arap Birir & 13 Others
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Set Aside Consent Order and Reinstate Petition
Legal Issues
- 1 Whether the proceedings of 2nd May, 2018 and the consent order should be set aside.
- 2 Whether the petition should be reinstated for hearing.
Ratio Decidendi
The court exercised its discretion to set aside the orders made on 2nd May, 2018, finding that the withdrawal of the petition was based on the advocate's view that the issues could be litigated as an ordinary suit. However, in the interest of justice and access to justice, the court determined that the petition should be reinstated and heard on its merits. The overriding objective to facilitate just, expeditious, proportionate, and affordable resolution of disputes guided the court's decision to allow the application and reinstitute the petition.
Court Disposition
Application allowed; proceedings and consent order of 2nd May, 2018 set aside; petition reinstated for hearing.
Orders
- The orders made by the court on 2nd May, 2018 are set aside.
- The Petitioner’s Petition is reinstated.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC PET NO. 7 OF 2018
ESTHER CHESANG’ BARGOCHUT...................................PETITIONER
VERSUS
KURGAT ARAP BIRIR & 13 OTHERS..........................RESPONDENTS
RULING
The Application before me is the Applicant’s Notice of Motion dated 28th June, 2018 seeking the court to set aside the proceedings of 2nd May, 2018 and the consent order entered in by the Petitioner and the Respondents.
Having read the Application before me, I find that the withdrawal of the instant Application was made after the advocate on record withdrew the petition on the grounds that the issues raised there in could adequately be litigated as an ordinary suit.
Having considered the Application and in the interest of justice and the overriding principles as relates to access to justice I am convinced that this is an Application in which I should exercise my discretion and consequently I will set aside the orders made by the court on 2nd May, 2018 and accordingly reinstitute the Petitioner’s Petition and order that the parties to have the same listed for hearing accordingly.
DATED, SIGNED and DELIVERED in open court at NAROK on this 26th day of October, 2018.
Mohamed N. Kullow
Judge
26/10/18
In the presence of:
Ms Saika for Maritim for the Petitioner
Ms Kerubo holding brief for Malozi for the 11th to 14th Respondents
CA:Chuma