[2018] KEELC 245 (KLR)
The court found that there was insufficient evidence to prove that the Plaintiff's advocate was served with the hearing notice for the date the matter was dismissed for want of prosecution. The absence of a Certificate of Posting or proof of personal service meant the court could not assume service had been...
Source-derived case information.
- Citation
- [2018] KEELC 245 (KLR)
- Parties
- Plaintiff: Henry Ngumbau Syuma (legal representative of the Estate of Robert Syuma Kalui – deceased); Defendant: Damaris Kavete Syuma; Defendant: County Government of Kitui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 30 of 2007
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Plaintiff's application allowed; suit reinstated subject to conditions.
- Judges
- OA Angote
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Service of Hearing Notice, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Ngumbau Syuma (legal representative of the Estate of Robert Syuma Kalui – deceased)
Plaintiff
Damaris Kavete Syuma
Defendant
County Government of Kitui
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the Plaintiff was properly served with a hearing notice before the suit was dismissed for want of prosecution.
- 2 Whether the dismissal of the Plaintiff's suit should be set aside and the suit reinstated.
Ratio Decidendi
The court found that there was insufficient evidence to prove that the Plaintiff's advocate was served with the hearing notice for the date the matter was dismissed for want of prosecution. The absence of a Certificate of Posting or proof of personal service meant the court could not assume service had been effected. Given the constitutional right to be heard, the court determined that the dismissal should be set aside and the suit reinstated, provided the Plaintiff sets the matter down for hearing within ninety days.
Court Disposition
Plaintiff's application allowed; suit reinstated subject to conditions.
Orders
- The orders dismissing the Plaintiff’s suit and all consequential orders thereto are set aside.
- The Plaintiff’s suit is reinstated.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 30 OF 2007
HENRY NGUMBAU SYUMA (legal representative of the
Estate of ROBERT SYUMA KALUI –deceased)........................PLAINTIFF
VERSUS
DAMARIS KAVETE SYUMA..........................................1ST DEFENDANT
COUNTY GOVERNMENT OF KITUI..........................2ND DEFENDANT
RULING
1. In the Notice of Motion dated 22nd January, 2018, the Plaintiff is seeking for the following orders:
a. That the Honourable Court be pleased to set aside the orders dismissing the Plaintiff’s suit and all other consequential orders thereto.
b. That the Honourable Court be pleased to reinstate the Plaintiff’s suit herein.
2. The Application is premised on the grounds that the Plaintiff’s failure to attend court and prosecute this matter was not a deliberate omission; that the Plaintiff was not served with a hearing notice nor a dismissal notice and that the suit should be reinstated.
3. The Plaintiff’s advocate swore an Affidavit in which he deponed that he was not aware that the matter had a hearing date of 29th March, 2017; that he was not aware that the matter had been dismissed for want of prosecution until 4th December, 2017 when he went to fix the suit for hearing and that the Application should be allowed.
4. In his Replying Affidavit, the 1st Defendant deponed that the Plaintiff’s advocate was served with the hearing notice by the court; that the Plaintiff’s advocate has not given reasons as to why the matter took long to be prepared for trial and that the Application should be dismissed.
5. The record shows that this matter was slated for hearing on 29th March, 2017. Indeed, the matter was slated for hearing during “the service week” that was conducted by different judges to reduce the backlog of cases in the station.
6. Although the 2nd Defendant’s advocate attended court on 29th March, 2017, the Plaintiff and his advocate were not in court. The Plaintiff’s advocate has deponed that he did not attend court on the said date because he was never served with a hearing notice.
7. The copy of the hearing notice that was purportedly served on the Plaintiff’s advocates does not show when the same was posted to the Plaintiff’s advocate’s address or whether the same was served personally on the Plaintiff’s advocate. In the absence of a copy of a Certificate of Posting showing that indeed the hearing notice was posted, it is difficult for this court to assume that indeed the hearing notice was served on the Plaintiff’s advocate by the registry.
8. It is trite that where there is no evidence to show that a party was notified of the hearing of a matter, any order made subsequent to the said lapse has to be set aside ex dibito justitiae.
9. Considering that it is the constitutional right of every litigant to be heard in a matter, I shall allow the Plaintiff’s Application dated 22nd January, 2018. The said Application is allowed on condition that the suit is set down for hearing within ninety (90) days of the date of this Ruling.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 7TH DAY OF DECEMBER, 2018.
O.A. ANGOTE
JUDGE