[2019] KEELC 3545 (KLR)
The court found that the plaintiffs had demonstrated sufficient cause for their absence at the hearing that led to the dismissal of the suit. The court was satisfied by the documentary evidence of illness and the plaintiffs' consistent attendance at previous mentions and hearings related to the notice to show cause....
Source-derived case information.
- Citation
- [2019] KEELC 3545 (KLR)
- Parties
- Plaintiff: Ezekiel Kirwa; Plaintiff: Mzee Arap Kitur (on their own behalf and on behalf of 13 Others); Defendant: Michael Kipruto Misoi; Defendant: Nixon Kipsang; Defendant: Jonathan Seronei; Defendant: Josea Kaptich Kirwa; Defendant: Joseph Cheruiyot Kutuny; Defendant: Noah K. Barng’etuny
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 104 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application to set aside dismissal granted; suit reinstated.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Review of Court Orders, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezekiel Kirwa
Plaintiff
Mzee Arap Kitur (on their own behalf and on behalf of 13 Others)
Plaintiff
Michael Kipruto Misoi
Defendant
Nixon Kipsang
Defendant
Jonathan Seronei
Defendant
Josea Kaptich Kirwa
Defendant
Joseph Cheruiyot Kutuny
Defendant
Noah K. Barng’etuny
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiffs have shown sufficient cause to set aside the dismissal of the suit for want of prosecution.
- 2 Whether the plaintiffs' absence at the hearing was justified by illness and other circumstances.
Ratio Decidendi
The court found that the plaintiffs had demonstrated sufficient cause for their absence at the hearing that led to the dismissal of the suit. The court was satisfied by the documentary evidence of illness and the plaintiffs' consistent attendance at previous mentions and hearings related to the notice to show cause. The court concluded that the plaintiffs were desirous of prosecuting the suit to its conclusion and that justice would be better served by allowing the matter to proceed on its merits. Consequently, the court vacated the dismissal order and directed that the suit proceed to full hearing, subject to the plaintiffs obtaining a priority hearing date within 14 days.
Court Disposition
Application to set aside dismissal granted; suit reinstated.
Orders
- The order dismissing the suit for want of prosecution is vacated.
- The suit shall proceed to full hearing on the merits.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC NO. 104 OF 2010
EZEKIEL KIRWA
MZEE ARAP KITUR (on their own behalf and
on behalf of 13 Others.........................................PLAINTIFFS/APPLICANTS
VERSUS
MICHAEL KIPRUTO MISOI...............1ST DEFENDANT/RESPONDENT
NIXON KIPSANG..................................2ND DEFENDANT/RESPONDENT
JONATHAN SERONEI.........................3RD DEFENDANT/RESPONDENT
JOSEA KAPTICH KIRWA..................4TH DEFENDANT/RESPONDENT
JOSEPH CHERUIYOT KUTUNY......5TH DEFENDANT/RESPONDENT
NOAH K. BARNG’ETUNY..................6TH DEFENDANT/RESPONDENT
RULING
1. The suit herein was dismissed for want of prosecution on the morning of 7/2/2019 when Mr. Magut and his clients, the plaintiffs failed to attend court upon a notice to show cause. Later at 1. 20 pm on the same day Mr. Magut appeared at the tail end of the hearings for that day and sought the review of the orders. This court directed the filing of an application seeking review or setting aside of the dismissal order. It was filed and granted on 13/3/2019.
2. I noted that in that application many of the grounds in support of that application were the same as those raised by Mr. Magut in response to the notice to show cause. I listened to Mr. Magut as he urged his client’s response to the show cause notice and noted the main grounds that the plaintiffs had repeatedly suffered the misfortune of illness during the pendency of this suit which affected their ability to pursue the hearing, and documents in evidence of this were tabled before the court.
3. I was convinced that this was the case upon perusal of all material on the record in regard to the notice to show cause and I noted the ubiquitous presence of the plaintiffs for the times that this show cause notice came up for mention or hearing and I am also convinced that they are desirous of proceeding with the suit to conclusion.
4. I therefore vacate the notice to show cause and that good cause has been shown to exist to warrant an order that this suit shall proceed to full hearing on the merits. The plaintiffs shall however endeavour and obtain a priority date for this matter within 14 days of this order so that the hearing may be expedited.
Dated, signedanddeliveredatKitale on this6thday ofMay, 2019.
MWANGI NJOROGE
JUDGE
6/5/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Kiarie for applicant
Mr. Ingosi holding brief for Magut for defendants
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
6/5/2019