[2019] KEELC 540 (KLR)
The Court found that the applicant's absence, along with his advocate, on the hearing date was not intentional but arose from mistake and ignorance. The Court exercised its discretion under Order 12 Rule 7 of the Civil Procedure Rules, guided by Article 159 of the Constitution, to do substantive justice. The Court...
Source-derived case information.
- Citation
- [2019] KEELC 540 (KLR)
- Parties
- Applicant: Harrison Muraguri Ndonga Nephat; Respondent: Harrison Kamore Kagutu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Muranga
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 128 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Non Attendance
- Outcome
- Application to set aside dismissal granted with conditions.
- Judges
- BC Koech
- Legal Topics
- Setting Aside Orders, Dismissal for Non Attendance, Reinstatement of Application, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harrison Muraguri Ndonga Nephat
Applicant
Harrison Kamore Kagutu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the Court should set aside the dismissal order made on 9/5/19 for non-attendance and reinstate the application.
- 2 Whether the absence of the applicant and his advocate constituted sufficient cause for non-attendance.
Ratio Decidendi
The Court found that the applicant's absence, along with his advocate, on the hearing date was not intentional but arose from mistake and ignorance. The Court exercised its discretion under Order 12 Rule 7 of the Civil Procedure Rules, guided by Article 159 of the Constitution, to do substantive justice. The Court granted the application to set aside the dismissal order and reinstated the application, conditional upon the matter being listed for hearing within 14 days, failing which it would stand dismissed. Costs were awarded to the applicant.
Court Disposition
Application to set aside dismissal granted with conditions.
Orders
- The dismissal order of 9/5/19 is set aside.
- The application dated 11/4/19 is reinstated.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT MURANG’A
ELC NO. 128 OF 2017
HARRISON MURAGURI NDONGA NEPHAT...............................APPLICANT
VERSUS
HARRISON KAMORE KAGUTU.................................................RESPONDENT
RULING
1. This ruling arises out of a dismissal of an application brought under certificate of urgency filed on the 25/4/19. When the application came up before the judge in chambers on the 25/4/19, the Court ordered that the application be served for interpartes hearing on the 9/5/19.
2. Come the 9/5/19 the parties were absent in Court. No reason was given for their absence. The Court consequently dismissed the application for non-attendance and want of prosecution.
3. The Applicant filed this application on the 12/7/19 seeking interalia that the Court set aside the dismissal orders of the 9/5/19 and reinstate the application dated the 11/4/19 filed on the 25/4/19.
4. The application is supported by the affidavit of the Applicant where he deposed that he and his Counsel on record failed to attend the hearing of the application. He stated that by the time they realized that directions had been given by the Court, it was on 15/5/19 by which time the Court had dismissed the application on the 9/5/19. That thereafter the Court was not sitting on account of the judge being on leave.
5. That the absence of both the Applicant and his Advocate in Court on the 9/5/19 was not intentional but it arose out of mistake and ignorance. He urged the Court to grant his orders.
6. The Respondent failed to file any response to the application hence it is unopposed.
7. The power vested in the trial Court to set aside the order dismissing the suit for non-attendance is contained in the provisions of Order 12 Rule 7 of the Civil Procedure Rules. It is a discretionary power that is exercised by the Court.
8. Going by the explanations given by the Plaintiff and guided by Article 159 of the Constitution to do substantive justice, I grant the application on condition that the matter be listed for hearing within the next 14 days from the date hereof in default of which it stands dismissed.
9. Costs shall be met by the Applicant.
10. It is so ordered.
DELIVERED, DATED AND SIGNED AT MURANG’A THIS 28TH NOVEMBER 2019.
J G KEMEI
JUDGE
Delivered in open Court in the presence of;
Plaintiff/Respondent: Present in person. Advocate is absent.
Ms Chumba HB for Mr Muguku for the Defendant/Applicant
Ms Irene and Ms Kuiyaki, Court Assistant