[2008] KEHC 845 (KLR)
The court found that the applicant's failure to attend court was due to being misdirected to the wrong court, and that he appeared in person before the duty judge shortly thereafter. The court exercised its discretion to set aside the dismissal order, emphasizing the importance of allowing litigants access to...
Source-derived case information.
- Citation
- [2008] KEHC 845 (KLR)
- Parties
- Applicant: Francis Muturi Buuri; Respondent: Mukurwei-ini Land Disputes Tribunal; Respondent: Chief Magistrate- Nyeri; Respondent: Bernard Kihara Buuri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 3 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application allowed; dismissal order set aside; suit reinstated; costs to 3rd respondent
- Legal Topics
- Setting Aside Orders, Judicial Review Leave, Non Attendance Dismissal, Land Disputes Tribunal, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Muturi Buuri
Applicant
Mukurwei-ini Land Disputes Tribunal
Respondent
Chief Magistrate- Nyeri
Respondent
Bernard Kihara Buuri
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court should set aside its order dismissing the application for non-attendance by the applicant.
- 2 Whether the applicant's explanation for non-attendance is sufficient to warrant reinstatement of the suit.
- 3 Whether the application was properly brought under the relevant procedural rules.
Ratio Decidendi
The court found that the applicant's failure to attend court was due to being misdirected to the wrong court, and that he appeared in person before the duty judge shortly thereafter. The court exercised its discretion to set aside the dismissal order, emphasizing the importance of allowing litigants access to justice and the opportunity to be heard. The court held that, in the interests of justice, the application to reinstate the suit should be allowed, notwithstanding procedural objections raised by the respondent. Costs were awarded to the 3rd respondent.
Court Disposition
application allowed; dismissal order set aside; suit reinstated; costs to 3rd respondent
Orders
- The application dated 7 March 2008 is allowed.
- The orders of 21 February 2008 dismissing the matter for non-attendance are set aside.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 3 of 2008
FRANCIS MUTURI BUURI ….…..…………………………. APPLICANT
AND
MUKURWEI-INI LAND DISPTUES TRIBUNAL ..... 1ST RESPONDENT
CHIEF MAGISTRATE- NYERI …….....……...………. 2ND RESPONDENT
BERNARD KIHARA BUURI ………………………. 3RD RESPONDENT
RULING
APPLICATION TO SET ASIDE ORDERSDISMISSING CASE DATED 7 MARCH 2008
I: Background
1. The applicant appellant herein had a dispute over land between his brother Benard Kihara Buuri and himself.
2. The Land parcel in question is LR Muhito/Mbiuini/1385 that was a partition/sub division for original land Muhitu/Mbiuini/ 666. Both the applicant and his brother occupied this portion of land. A dispute arose as how the apportionment of the property should be done. The matter proceeded to the Land Disputes Tribunal at Mukuweini case No.4/2004 and the tribunal then apportioned the suit land between the two brothers.
3. Being dissatisfied with the decision of the tribunal, the appellant filed this judicial review. On the day called out for hearing on 21. 02. 08, the court dismissed the application on grounds of non attendance by the applicant to court. On
12 February 2008 the applicant had personally appeared before
K. Kariuki whereby he did not comment that the verifying affidavit did not comply with setting out the facts as laid out in CA 45/2002 Commissioner General KRA v Silvana Awaki.
4. The status then of the application was one to seek leave to bring judicial review proceeding. As the said application had now been dismissed for non attendance and the applicant now prays for it to be reinstated by application of 7 March 2008 then it seems that service upon other parties was directed to be made.
5. On the date of hearing application 7. 3.08 only the advocate for defendant No.3 attended for hearing.
II: Application 7. 3.2008
6. The applicant argued that he was directed to the wrong court and was the reasons he did not appear. He prayed for reinstatement of suit.
7. The respondent No.3 stated that the application has no merit having been brought under the wrong rules.
II: Opinion
8. The reasons the duty judge entertained the applicant was because he appeared in person.
9. I would accordingly do the same to permit the applicant to access the court and justice and be heard.
10. I accordingly allow the application and set aside my orders of 21 February 2008 dismissing this matter for non attendance of the applicant to court with costs to 3rd respondents.
DATED THIS 24TH DAY OF SEPTEMBER 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
Francis Muturi Buuri – the plaintiff/applicant in person – present
Gatumuta instructed by Gatumuta C.K. Advocates for the 3rd Respondent