[2020] KEELC 2326 (KLR)

[2020] KEELC 2326 (KLR)

The court found that the suit was dismissed after the plaintiff was given an opportunity to show cause and failed to satisfy the court. The dismissal was made under Order 17 Rule 2 of the Civil Procedure Rules, and the judge who made the order did so after hearing the matter on its merits. As such, the court is...

Source-derived case information.

Citation
[2020] KEELC 2326 (KLR)
Parties
Plaintiff: Frederick Otieno Otieno; Defendant: Stephen Oluoch Opot
Court
Environment and Land Court
Court Station
Environment and Land Court at Kisumu
Jurisdiction
Kenya
Case Number
Environment & Land Case 74 of 2016
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Outcome
application dismissed
Judges
TM Olando
Legal Topics
Dismissal for Want of Prosecution, Reinstatement of Suit, Judicial Discretion, Functus Officio
Source Language
en
Civil Procedure Land and Property Dismissal for Want of Prosecution Reinstatement of Suit Judicial Discretion Functus Officio

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Downloadable case file Legal principles 2 Authorities cited 1 Party arguments 2
Sign in to unlock

Parties

Frederick Otieno Otieno

Plaintiff

Stephen Oluoch Opot

Defendant

Procedural Posture

Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit

Legal Issues

  1. 1 Whether the court should set aside the order dismissing the suit for want of prosecution.
  2. 2 Whether the court should reinstate the plaintiff's suit after dismissal under Order 17 Rule 2 of the Civil Procedure Rules.
  3. 3 Whether the court is functus officio after a dismissal for want of prosecution.

Ratio Decidendi

The court found that the suit was dismissed after the plaintiff was given an opportunity to show cause and failed to satisfy the court. The dismissal was made under Order 17 Rule 2 of the Civil Procedure Rules, and the judge who made the order did so after hearing the matter on its merits. As such, the court is functus officio and cannot entertain an application to reinstate the suit, as this would amount to sitting on appeal or review of a decision by a judge of concurrent jurisdiction. The proper recourse for the plaintiff would have been to appeal the dismissal order. The application to set aside the dismissal and reinstate the suit was therefore dismissed with costs to the defendant.

Court Disposition

application dismissed

Orders

  • The application to set aside the dismissal order and reinstate the suit is dismissed.
  • Costs of the application are awarded to the defendant.