[2021] KEELC 3660 (KLR)
The court found that the applicant promptly filed the application for reinstatement and that the confusion regarding the mode of hearing (virtual versus open court) constituted an excusable mistake. The court exercised its discretion to avoid injustice, noting that there was no evidence of deliberate delay or...
Source-derived case information.
- Citation
- [2021] KEELC 3660 (KLR)
- Parties
- Applicant: Frankline Muriira M'Nkanata; Respondent: The Adjudication Officer, Ruiri/Rwarera Adjudication Section; Respondent: The Land Registrar Meru Central District; Respondent: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? E006 of 2020
- Procedural Posture
- Notice of Motion / Application for Reinstatement of Dismissed Application
- Outcome
- Application allowed; dismissed application reinstated.
- Legal Topics
- Reinstatement of Application, Excusable Mistake, Judicial Discretion, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Frankline Muriira M'Nkanata
Applicant
The Adjudication Officer, Ruiri/Rwarera Adjudication Section
Respondent
The Land Registrar Meru Central District
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Notice of Motion / Application for Reinstatement of Dismissed Application
Legal Issues
- 1 Whether the court should reinstate the application dismissed for non-attendance due to confusion over virtual versus physical hearing.
- 2 Whether the applicant's failure to attend was an excusable mistake warranting exercise of judicial discretion.
Ratio Decidendi
The court found that the applicant promptly filed the application for reinstatement and that the confusion regarding the mode of hearing (virtual versus open court) constituted an excusable mistake. The court exercised its discretion to avoid injustice, noting that there was no evidence of deliberate delay or obstruction of justice by the applicant. Consequently, the application to reinstate the previously dismissed application was allowed.
Court Disposition
Application allowed; dismissed application reinstated.
Orders
- The application dated 19.1.2021 is allowed.
- The application dismissed on 19.1.2021 is reinstated.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC PETITION NO. E006 OF 2020
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 40 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF ARTCLES 22, 23 AND 165 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF SECTIONS 26A, 27 AND 28 OF THE LAND ADJUDICATION ACT CAP 284 LAWS OF KENYA
AND
AND IN THE MATTER OF SECTION 24, 25, 78 AND 79 OF THE LAND REGISTRATION ACT NO. 3 OF 2012
AND
AND IN THE MATTER OF THE LAND REGISTRATION ACT AND THE LAND ACT
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES 2013, SECTION 4
BETWEEN
FRANKLINE MURIIRA M’NKANATA...............................................................................................PETITIONER
VERSUS
THE ADJUDICATION OFFICER, RUIRI/RWARERAADJUDICATIONN SECTION......1ST RESPONDENT
THE LAND REGISTRAR MERU CENTRAL DISTRICT.......................................................2ND RESPONDENT
THE HON. ATTORNEY GENERAL.......................................................................................... 3RD RESPONDENT
AND
ANNAH MWARI MUTUMA ............................................................................................1ST INTERESTED PARTY
JACOB KITHAE MAKUNYU .........................................................................................2ND INTERESTED PARTY
GACANI MBERIA ............................................................................................................3RD INTERESTED PARTY
ELIAS MUTHIORA NATHAN.........................................................................................4TH INTERESTED PARTY
RULING
1. Before me is a notice of motion dated 19/01/2021 seeking orders to reinstate the application dated 28. 10. 2020 which was dismissed on 19. 1.2021. The application is based on the grounds on the face of it and on the supporting affidavit of the applicant. He avers that the earlier application was scheduled for hearing on 19. 1.2021. He and his advocate were of the understanding that the matter would be heard in open court. However, the matter was conducted virtually and dismissed.
2. The application is unopposed. This court has discretion to set aside a judgment or order. The exercise of this discretion is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice, See Shah vs Mbogo & Another (1967) EA 116.
3. I have considered that the current application was filed promptly. Further the confusion in attending open court instead of virtually may be considered as an excusable mistake. In the circumstances, I proceed to allow the application of 19. 1.2021 with no orders as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 21ST DAY OF APRIL, 2021 IN PRESENCE OF:
C/A: Kananu
D. Maranya for petitioner
HON. LUCY. N. MBUGUA
ELC JUDGE