[2019] KEELC 4176 (KLR)
The court found that the applicant was not entirely candid regarding the issue of representation and service, as the record showed that Mwiti & Co. Advocates were still on record when the notice to show cause was served. However, in the interest of justice and to allow the matter to be heard on its merits, the court...
Source-derived case information.
- Citation
- [2019] KEELC 4176 (KLR)
- Parties
- Plaintiff: Gideon Meenye; Defendant: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 47 of 2008
- Procedural Posture
- Notice of Motion / Ruling on Application for Reinstatement of Suit
- Outcome
- Application allowed with conditions.
- Legal Topics
- Reinstatement of Suit, Service of Process, Representation of Parties, Dismissal for Non Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gideon Meenye
Plaintiff
The Hon. Attorney General
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-prosecution.
- 2 Whether service of the notice to show cause was properly effected on the applicant.
- 3 Whether the applicant was properly represented at the material time.
Ratio Decidendi
The court found that the applicant was not entirely candid regarding the issue of representation and service, as the record showed that Mwiti & Co. Advocates were still on record when the notice to show cause was served. However, in the interest of justice and to allow the matter to be heard on its merits, the court exercised its discretion to reinstate the suit, subject to strict conditions to ensure expeditious prosecution. The court emphasized that the applicant had not been vigilant in prosecuting the matter, but allowed reinstatement to avoid shutting out the applicant from the seat of justice, provided that the suit is concluded within the year and no adjournments are sought without...
Court Disposition
Application allowed with conditions.
Orders
- The suit is reinstated and must be heard and concluded within the course of the year.
- No application for adjournment by the applicant will be accepted unless there are very compelling reasons.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 47 OF 2008
GIDEON MEENYE......................................................PLAINTIFF
VERSUS
THE HON. ATTORNEY GENERAL......................DEFENDANT
RULING
1. Vide the notice of motion filed on 9. 11. 2018, applicant/plaintiff is seeking for orders of reinstatement of the suit, which was dismissed on 26. 9.2017.
2. Applicant contends that the hearing of the notice to show cause was served upon Mwiti & Co. advocates via EMS, but his advocate and himself never received the notice.
3. It was also argued for the plaintiff that the applicant was no longer being represented by Mwiti advocate.
4. The respondent’s counsel contends that by the time the notice to show cause was issued, the counsel on record for the Applicant was Mwiti advocate and therefore service was proper.
5. I have perused the record and I find that applicant is not candid on the issue of representation and on service.
6. In his ground no. 5 & 6 of his application, he avers that the subject advocate (Mwiti & Co) did not get the hearing notice, and that is why him and his advocate were not in court on 26. 9.2017. However Miss Soi argued that Mwiti advocate was served but had withdrawn from Acting without informing the applicant.
7. This is a 2008 matter and the applicant doesn’t appear to be vigilant in prosecuting the matter.
8. Nevertheless, I will exercise discretion in favour of the applicant to enable him prosecute this case but with strict conditions.
9. The application of 9. 11. 2018 is allowed in the following terms:
(i) That the suit must be heard and concluded in the course of this year.
(ii) No application for adjournment by the applicant will be accepted by the court when the matter is set down for hearing, unless there are very compelling reasons that would warrant the adjournment.
(iii) Applicant is condemned to pay costs of the application.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 27TH MARCH, 2019
IN THE PRESENCE OF:-
C/A: Kananu
Ojiambo holding brief for Meenye & Kirima for plaintiff/applicant
Kiongo for respondent
HON. LUCY. N. MBUGUA
ELC JUDGE