[2020] KEELC 2175 (KLR)
The court found that the defendant failed to file submissions as required for the application dated 10/9/2019, resulting in its dismissal for want of prosecution. The court held that the advocate's mistake in misdiarizing the ruling date did not constitute sufficient grounds for review or reinstatement, especially...
Source-derived case information.
- Citation
- [2020] KEELC 2175 (KLR)
- Parties
- Plaintiff: Grace Zakayo Linyamoi; Defendant: Wilson Lonapa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 162 of 2016
- Procedural Posture
- Review Application / Ruling on Application for Review of Dismissal Order
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Review of Court Orders, Dismissal for Want of Prosecution, Reinstatement of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Zakayo Linyamoi
Plaintiff
Wilson Lonapa
Defendant
Procedural Posture
Review Application / Ruling on Application for Review of Dismissal Order
Legal Issues
- 1 Whether the defendant has established sufficient grounds for review of the court's order dismissing the application dated 10/9/2019.
- 2 Whether the failure to file submissions due to advocate's mistake constitutes a valid reason for review or reinstatement of the dismissed application.
Ratio Decidendi
The court found that the defendant failed to file submissions as required for the application dated 10/9/2019, resulting in its dismissal for want of prosecution. The court held that the advocate's mistake in misdiarizing the ruling date did not constitute sufficient grounds for review or reinstatement, especially in the absence of any submissions, draft or otherwise, or an express prayer for extension of time. The court emphasized that there was no material before it to enable consideration of the application on its merits, and thus, the application for review lacked merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 20/12/2019 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 162 OF 2016
GRACE ZAKAYO LINYAMOI…...........................PLAINTIFF
VERSUS
WILSON LONAPA……………………………….DEFENDANT
RULING
1. The application dated 20/12/2019 and filed in court on the same date has been brought by the defendant. It seeks an order of review of the court’s ruling and order issued on 7/11/2019 dismissing the applicant’s application dated 10/9/2019 and that the that application be heard on the merits.
2. The applicant has brought the application under Section 1A, 1B, 3, 3A, of the Civil Procedure Act, Cap 21 Laws of Kenya Order 45 Rules 1 and 2, Order 51 rule 1 of the Civil Procedure Rules 2010, and Articles 48 159 (2) (d) of the Constitution of Kenya.
3. The grounds are that this court dismissed the application for want of prosecution, that the advocate misdiarized the ruling date and failed to file submissions, that the default was due to a genuine mistake for which the defendant should not be allowed to suffer. It is also averred that the defendant has already filed an appeal, Kisumu Civil Appeal No 214 of 2019which would be defeated unless the prayers herein are granted.
4. The application is supported by the sworn affidavit of Mr. Teti, the applicant’s counsel which amplifies the above grounds. He depones that he misdiarized the ruling date for 27th November 2019 instead of 7th November 2019 and has attached copies of his diary for the relevant dates to prove the same.
5. I have perused the instant application and found no submissions filed with it in support of the application dated 10/9/2019. The order of this court regarding the application dated 10/9/2019 was that it would be disposed of by way written submissions which the defendant failed to file hence the dismissal.
6. Even if this court were to grant the application dated 20/12/2020, there are no submissions, even by way of a draft annexed to a supporting affidavit, by which the court would deem itself to have been moved by the applicant. There is also no prayer in the application to have any submissions allowed out of time. Nor is there an express application for reinstatement on its merits.
7. In view of the foregoing I find that the application dated 20/12/2019 has no merit and the same is hereby dismissed with costs to the respondent.
Dated, signed and delivered at Nairobi via electronic mail on this 29th day of May, 2020.
MWANGI NJOROGE
JUDGE, ELC, KITALE.