[2019] KEELC 1018 (KLR)
The court found that the applicant's claim of not knowing the hearing date was untrue, as the date was taken by consent in the presence of his counsel. The reasons advanced for non-attendance were not acceptable, especially given the age of the case, which was filed in 2013. The court applied the principles that...
Source-derived case information.
- Citation
- [2019] KEELC 1018 (KLR)
- Parties
- Applicant: Francis Muslio Cheloti; Respondent: Maigwe Kiarie; Respondent: Jane Maigwe Kiarie
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 346 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal
- Outcome
- application dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Dismissal for Non Attendance, Reinstatement of Suit, Excusable Non Attendance, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Muslio Cheloti
Applicant
Maigwe Kiarie
Respondent
Jane Maigwe Kiarie
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be set aside.
- 2 Whether the applicant's failure to attend court was excusable.
Ratio Decidendi
The court found that the applicant's claim of not knowing the hearing date was untrue, as the date was taken by consent in the presence of his counsel. The reasons advanced for non-attendance were not acceptable, especially given the age of the case, which was filed in 2013. The court applied the principles that plaintiffs must diligently prosecute their cases and that reinstatement depends on whether the delay is excusable and justice can still be served. The court concluded that the application lacked merit and dismissed it with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the dismissal order is dismissed.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 346 OF 2013
FRANCIS MUSLIO CHELOTI...............................................PLAINTIFF/APPLICANT
VERSUS
MAIGWE KIARIE
JANE MAIGWE KIARIE..............................................DEFENDANT/RESPONDENTS
RULING
The application is dated 25th July 2019 and is brought under Order 12 Rule 7 Civil Procedure Rules and Sections 3 & 3A of the Civil Procedure Act seeking the following orders;
1. That the orders of this court dismissing this suit be and are hereby set aside.
2. That costs hereof be in the cause.
It is grounded on the annexed affidavit of Francis Cheloti and the grounds that this suit was dismissed by this court on 2nd day of July, 2019 for non attendance. That he was not aware that this matter was coming for hearing on the day it was dismissed. That failure to attend court was not deliberate hence excusable. That the applicant is keen on prosecuting this matter. That the present application has been brought without delay.
This court has considered the application and the submissions therein. I have perused the court file and find that this suit was dismissed on 2nd July 2019 when the plaintiff and his counsel failed to attend. On the 17th December 2018 the plaintiff’s counsel was in court and sought an adjournment and the date of 2nd July 2019 was taken by consent. On the date for hearing the defendants were in court and the plaintiff was not. I find that the reason that he did not know about the hearing date is not true. This is a matter which was filed way back in 2013. Reasons advanced for non attendance are not acceptable.
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 5TH NOVEMBER 2019.
N.A. MATHEKA
JUDGE