[2023] KEELC 20588 (KLR)
The court found that the application for reinstatement was unopposed and made without delay. The applicant provided a satisfactory explanation for non-attendance, supported by medical evidence. The respondent did not demonstrate any prejudice that would result from reinstatement. The court exercised its discretion...
Source-derived case information.
- Citation
- [2023] KEELC 20588 (KLR)
- Parties
- Plaintiff: Njeri Gitee; Plaintiff: Peter Kirika Mwaniki; Plaintiff: Gibson Kairu Guchu; Plaintiff: John Kibuika Kihungi; Plaintiff: James Kimemia Githeri; Plaintiff: Francis Gathu Kimemia; Plaintiff: Edward Mwangi Ndungu; Plaintiff: Francis Muhoro Mwangi; Plaintiff: Joan Mwihaki Mbugua; Plaintiff: Caroline Wamaitha Githinji; Plaintiff: Leah Kabura Kimani; Plaintiff: John Njoroge Wanjiku (On behalf of Bethel Church Esther Kibui Kuria); Defendant: Joseph Ndura Mbushiri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 864 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Suit
- Outcome
- Application allowed; suit reinstated for hearing.
- Judges
- JG Kemei
- Legal Topics
- Reinstatement of Suit, Non Attendance, Exercise of Judicial Discretion, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Njeri Gitee
Plaintiff
Peter Kirika Mwaniki
Plaintiff
Gibson Kairu Guchu
Plaintiff
John Kibuika Kihungi
Plaintiff
James Kimemia Githeri
Plaintiff
Francis Gathu Kimemia
Plaintiff
Edward Mwangi Ndungu
Plaintiff
Francis Muhoro Mwangi
Plaintiff
Joan Mwihaki Mbugua
Plaintiff
Caroline Wamaitha Githinji
Plaintiff
Leah Kabura Kimani
Plaintiff
John Njoroge Wanjiku (On behalf of Bethel Church Esther Kibui Kuria)
Plaintiff
Joseph Ndura Mbushiri
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the plaintiffs have provided sufficient cause for non-attendance leading to dismissal of the suit.
- 2 Whether the suit should be reinstated for hearing on the merits.
- 3 Whether the respondent is entitled to throw away costs.
Ratio Decidendi
The court found that the application for reinstatement was unopposed and made without delay. The applicant provided a satisfactory explanation for non-attendance, supported by medical evidence. The respondent did not demonstrate any prejudice that would result from reinstatement. The court exercised its discretion to allow the application and reinstate the suit for hearing on the merits. No order as to costs was made, as the respondent had not filed any pleadings despite service and thus was not entitled to throw away costs.
Court Disposition
Application allowed; suit reinstated for hearing.
Orders
- The suit is reinstated for hearing.
- No order as to costs.
Full Case Text
Judgment text and source record
45 paragraphs
Gitee & 11 others v Mbushiri (Environment & Land Case 864 of 2017) [2023] KEELC 20588 (KLR) (9 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20588 (KLR)
Republic of Kenya
In the Environment and Land Court at Thika
Environment & Land Case 864 of 2017
JG Kemei, J
October 9, 2023
Between
Njeri Gitee
1st Plaintiff
Peter Kirika Mwaniki
2nd Plaintiff
Gibson Kairu Guchu
3rd Plaintiff
John Kibuika Kihungi
4th Plaintiff
James Kimemia Githeri
5th Plaintiff
Francis Gathu Kimemia
6th Plaintiff
Edward Mwangi Ndungu
7th Plaintiff
Francis Muhoro Mwangi
8th Plaintiff
Joan Mwihaki Mbugua
9th Plaintiff
Caroline Wamaitha Githinji
10th Plaintiff
Leah Kabura Kimani
11th Plaintiff
John Njoroge Wanjiku (On behalf of Bethel Church Esther Kibui Kuria)
12th Plaintiff
and
Joseph Ndura Mbushiri
Defendant
Ruling
1. The applicant filed the notice of motion dated 7/7/2023 seeking the following orders:-a.Spent.b.That this Honourable Court do hereby order reinstatement of the plaintiffs suit.c.Costs be in the cause.
2. The application is premised on the grounds annexed thereto and the supporting affidavit of David Mutunga, Counsel for the applicant sworn on 7/7/2023.
3. The deponent stated that when the matter came up for hearing on 12/5/2023 he was unwell and therefore unable to attend court. The treatment sheet was annexed in support.
4. The application is not opposed despite service.
5. When the application came for hearing on 9/10/2023 the respondent’s counsel informed the court that she was not opposing the application subject to the court ordering throw away costs in favour of her client, a position that was vehemently objected to by Counsel of the applicant on grounds that the respondent despite service failed to file any pleadings. It was his argument that in the circumstances the respondent does not deserve any throw away costs.
6. Having considered the application, the affidavit evidence, the oral arguments, the court makes the following findings: the application is unopposed despite service; the application was made without delay and the applicant has sufficiently explained the reasons for his absence in court to the satisfaction of the court; the respondent has not shown any prejudice he stands to suffer if the case is heard on merits.
7. For the above reasons the application is allowed. Consequently, the suit be and is hereby reinstated for hearing.
8. I make no order as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 9TH DAY OF OCTOBER, 2023 VIA MICROSOFT TEAMS.J G KEMEIJUDGE