[2018] KEELC 1213 (KLR)
The court found that the suit had been expressly stayed by an order of Hon. Lady Justice L.N. Waithaka on 20th September, 2013, pending the determination of Judicial Review No. 6 of 2012. There was no evidence that the judicial review proceedings had been concluded or that the stay order had been lifted or varied....
Source-derived case information.
- Citation
- [2018] KEELC 1213 (KLR)
- Parties
- Plaintiff: Ezekiel Kipkoech Rono; Defendant: John Kipgetich Koech
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 19 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed; suit reinstated
- Judges
- MN Kullow
- Legal Topics
- Setting Aside Dismissal, Reinstatement of Suit, Service of Process, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezekiel Kipkoech Rono
Plaintiff
John Kipgetich Koech
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the order dismissing the suit should be set aside and the suit reinstated.
- 2 Whether the applicant was properly served with notice after transfer of the suit.
- 3 Whether the stay order pending determination of Judicial Review No. 6 of 2012 was still in force.
Ratio Decidendi
The court found that the suit had been expressly stayed by an order of Hon. Lady Justice L.N. Waithaka on 20th September, 2013, pending the determination of Judicial Review No. 6 of 2012. There was no evidence that the judicial review proceedings had been concluded or that the stay order had been lifted or varied. Therefore, the dismissal of the suit was improper as the stay was still in force. In the interest of justice, the court exercised its discretion to set aside the order of dismissal and reinstate the suit.
Court Disposition
application allowed; suit reinstated
Orders
- The order of 18th September, 2017 dismissing the suit is set aside.
- All consequential orders made thereafter are set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC CAUSE NO. 19 OF 2017
EZEKIEL KIPKOECH RONO................................PLAINTIFF
VERSUS
JOHN KIPGETICH KOECH...............................DEFENDANT
RULING
The Application before me is the Plaintiff’s/Applicant’s Notice of Motion dated 28th September, 2018 which is brought under order 12 Rule 7 of the Civil Procedure Rules seeking for the setting aside of the order dismissing the suit and for the reinstatement of the same.
The Application was supported by the Affidavit of one Reuben Cheruiyot Yegon who deponed on the grounds that the suit herein was dismissed because neither the parties nor their advocates were present in court on 18th September, 2017 when the suit came up for hearing and that the Applicant was not served after the suit herein was transferred from Nakuru to Narok and lastly that the suit herein was stayed to await the determination of a Judicial Review Application No. 6 of 2012 at Nakuru and lastly the dismissal of the suit shall be prejudicial to the Applicant.
The Application was opposed by the Respondent by way of a Replying Affidavit and he contends that the Applicant was served with a Notice To Show Cause why the suit should not be dismissed and when they failed to attend court the suit was thus dismissed.
I have read the Application before me and without looking at any other matter I find that the suit herein was stayed on 20th September, 2013 by Hon. Lady Justice L.N. Waithaka pending the hearing and determination of Judicial Review No. 6 of 2012.
I have not seen evidence the aforesaid Judicial Review Application was concluded to have this suit heard or any order varying or setting aside L.N. Waithaka J order of 20th September, 2013 and in view of the above, and in the interest of justice I will allow the Application dated 28th September, 2017 and I consequently set aside my order of 18th September, 2017 and other consequential orders I made thereafter and the suit here is accordingly reinstated. Each party shall bear its costs.
DATED, SIGNED and DELIVERED in open court atNAROKon this18thday of October, 2018
Mohammed Noor Kullow
Judge
18/10/18
In the presence of:-
Ms Nchoe holding brief for Koceyo for the Defendant/Respondent
N/A for the Plaintiff/Applicant
CA:Chuma