[2009] KEHC 2184 (KLR)
The court found that the applicant had provided a reasonable explanation for her non-attendance at the hearing, namely, confusion arising from a change in the hearing date by the registry without notification to the parties. The court was satisfied that this constituted sufficient cause for the applicant's absence....
Source-derived case information.
- Citation
- [2009] KEHC 2184 (KLR)
- Parties
- Applicant: Hannah Wambui Macharia; Respondent: Margaret Nduta Ng’ang’a
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 916 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review and Reinstatement
- Outcome
- Application allowed. Dismissal order reviewed and set aside. Application reinstated for hearing.
- Judges
- JL Osiemo
- Legal Topics
- Review of Dismissal Orders, Reinstatement of Application, Land Disputes Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hannah Wambui Macharia
Applicant
Margaret Nduta Ng’ang’a
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review and Reinstatement
Legal Issues
- 1 Whether the applicant has shown sufficient cause for non-attendance at the hearing leading to dismissal of the application.
- 2 Whether the order dismissing the application should be reviewed and set aside and the application reinstated for hearing.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for her non-attendance at the hearing, namely, confusion arising from a change in the hearing date by the registry without notification to the parties. The court was satisfied that this constituted sufficient cause for the applicant's absence. Exercising its discretion, the court held that the interests of justice required the dismissal order to be reviewed and set aside, and the application reinstated for hearing. The court further directed that, due to the age of the matter, the hearing should be given priority in the registry.
Court Disposition
Application allowed. Dismissal order reviewed and set aside. Application reinstated for hearing.
Orders
- The order dismissing the application dated 27th November 2007 is reviewed and set aside.
- The application is reinstated for hearing.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
MISCELLANEOUS APPLICATION 916 OF 2007
HANNAH WAMBUI MACHARIA wife and administrator
Of the estate of JULIUS MACHARIA NGATHO (deceased)…...........….APPLICANT
VERSUS
MARGARET NDUTA NG’ANG’A………………………….........………...RESPONDENT
R U L I N G
This is an application by way of Notice of Motion brought by Julius Macharia Ngatho seeking orders that the order by this Honourable Court made on 7th March 2008 dismissing his application dated 27th November 2007 be reviewed and set aside and the said application be reinstated for hearing. The application is based on the grounds as stated on the body of the Notice of Motion and supported by an affidavit sworn by the Applicant.
The application is opposed by the Respondent.
The facts which gave rise to this litigation briefly may be stated.
The Respondent was married to the Applicant now deceased for about 12 years. During the subsistence of the marriage they acquired the suit land being LR No TINGANGA/KIANDA/BLOCK 1/666. Their marriage broke down and they divorced and the Respondent ran away.
In the year 2001, the Respondent came back and claimed the suit land. She filed a reference before the Kiambu Land Disputes Tribunal being land case No 16/20/12/2001.
Both parties appeared before the elders and testified. The Elders after listening to the evidence of both parties decided to make an award in favour of the claimant Margaret Nduta Macharia.
The objector was aggrieved with that decision but before he could appeal he passed away. The application to file this application out of time was filed by his window Hannah Wambui who had then been appointed the Administrator of the estate of the deceased. The application was filed on 27th November 2009. It was set down for hearing on 7th March 2008 but both parties did not attend and the application was dismissed by Ang’awa J. for non-appearance. This is the order the Applicant has applied to be reviewed and set aside and application be reinstated. This application is based on the ground that there was confusion. The date was given through a serial number by the registry which was later changed without notifying the parties and that is why both parties did not attend.
Having considered the application in light of the affidavit evidence on record and submissions by both Counsel I ma satisfied that the Applicant has given reasonable cause as to why she did not attend the hearing.
I am persuaded to exercise my discretion in favour of the Applicant. I allow the application in terms of prayer 1 and 2 of the Chamber Summons dated 17th February 2009. Due to the age of the application I order that a hearing date be taken in the registry on priority basis. Those are the orders of this court.
Dated and delivered at Nairobi this 23rd day of June 2009.
J. L. A OSIEMO
JUDGE