[2019] KEELC 1264 (KLR)
The court found that the application for reinstatement was unopposed and that the applicant's absence was not deliberate, as her advocate was unaware of the hearing date and thus did not inform her. The court emphasized the need for vigilance in prosecution but also recognized the constitutional imperative that...
Source-derived case information.
- Citation
- [2019] KEELC 1264 (KLR)
- Parties
- Applicant: Gediel Kimathi Kithure; Applicant: Shadrack Mugambi M’Kithea; Applicant: Samuel Karuti; Respondent: Eliyah Kinyua Baariu; Applicant: Seberina Kaario Karuti
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 7 of 2012
- Procedural Posture
- Miscellaneous Application / Application for Reinstatement of Suit After Dismissal for Want of Prosecution
- Outcome
- Application allowed; suit and application reinstated.
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Limitation of Actions, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gediel Kimathi Kithure
Applicant
Shadrack Mugambi M’Kithea
Applicant
Samuel Karuti
Applicant
Eliyah Kinyua Baariu
Respondent
Seberina Kaario Karuti
Applicant
Procedural Posture
Miscellaneous Application / Application for Reinstatement of Suit After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the applicant's absence was deliberate or excusable.
- 3 Whether the respondent would be prejudiced by reinstatement of the application.
Ratio Decidendi
The court found that the application for reinstatement was unopposed and that the applicant's absence was not deliberate, as her advocate was unaware of the hearing date and thus did not inform her. The court emphasized the need for vigilance in prosecution but also recognized the constitutional imperative that justice shall not be delayed. In the absence of opposition and prejudice to the respondent, the court exercised its discretion to allow the application and reinstate the suit and the earlier application for hearing.
Court Disposition
Application allowed; suit and application reinstated.
Orders
- The application dated 1.9.2018 is allowed.
- The application dated 24.2.2015 is to be listed for hearing forthwith.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC SUIT NO. 7 OF 2012 (O.S)
IN THE MATTER OF LAND PARCEL NO. NJIA CIA MWENDWA/3322
AND
IN THE MATTER OF SECTIONS 27 AND 28 OF THE LIMITATION OF ACTIONS ACT CAP 21 LAWS OF KENYA
AND
IN THE MATTER OF ORDER 37 RULES 6(1) OF THE CIVIL PROCEDURE RULES
AND
IN THE MATTER OF ARTICLE 159 OF THE CONSTITUTION OF KENYA 2010
BETWEEN
GEDIEL KIMATHI KITHURE.......................1ST APPLICANT
SHADRACK MUGAMBI M’KITHEA.........2ND APPLICANT
SAMUEL KARUTI.........................................3RD APPLICANT
VERSUS
ELIYAH KINYUA BAARIU............................RESPONDENT
SEBRINA KAARIO KARUTI.............................APPLICANT
RULING
1. This suit was dismissed on 23. 1.2018. The Notice of Motion dated 1. 9.2018 seeks orders to re-instate the suit and the application dated 24. 2.2015.
2. The grounds in support of the application are set out in the body of the Motion and supporting affidavit of Seberina Kaario Karuti. It is contended that the applicant was not absent deliberately. The matter was fixed for notice to show cause on 23. 1.2018 and the court intended to transfer the file to Maua court. No party attended and the court went ahead and dismissed the matter for want of prosecution. She affirmed that her advocate was not aware of the date and consequently he had not informed her. Thus, the respondent will not be prejudiced in any way if application dated 24. 2.2015 is reinstated.
3. I find that the application has not been opposed. Nevertheless, the applicants need to be more vigilant in the prosecution of this case taking into account the judicial principle that ‘justice shall not be delayed’. See Article 159 (2) (b) of the Constitution of Kenya.
4. I hereby allow the application dated 1. 9.2018 with no orders as to costs. The application dated24. 1.2015 is to be listed down for hearing forth with.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 2ND DAY OF OCTOBER, 2019 IN THE PRESENCE OF: -
C/A: Kananu
Kiogora holding brief for B.G Kariuki for applicant/plaintiffs
Applicants
HON. LUCY. N. MBUGUA
ELC JUDGE