[2017] KEELC 3558 (KLR)
The court found that the Plaintiff’s advocate was absent from the courtroom at the time the matter was called out because he was in the registry filing a return of service, and there was no evidence that the Defendant’s advocate had served the Notice of Appointment and Replying Affidavit on the Plaintiff’s advocate....
Source-derived case information.
- Citation
- [2017] KEELC 3558 (KLR)
- Parties
- Plaintiff: Irene Katumbu Kimanthi; Defendant: Philip Mwania
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 109 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Reinstatement of Application, Dismissal for Want of Prosecution, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irene Katumbu Kimanthi
Plaintiff
Philip Mwania
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the order dismissing the Plaintiff's application for want of prosecution should be set aside.
- 2 Whether the Plaintiff's application dated 9th September, 2016 should be reinstated for hearing on merit.
Ratio Decidendi
The court found that the Plaintiff’s advocate was absent from the courtroom at the time the matter was called out because he was in the registry filing a return of service, and there was no evidence that the Defendant’s advocate had served the Notice of Appointment and Replying Affidavit on the Plaintiff’s advocate. The Plaintiff’s advocate filed the application to set aside the dismissal on the same day, demonstrating diligence. In these circumstances, the court was satisfied that sufficient cause had been shown for the non-attendance and exercised its discretion to set aside the dismissal order and reinstate the Plaintiff’s application for hearing on merit.
Court Disposition
application allowed
Orders
- The order made on 28th September, 2016 dismissing the Plaintiff’s Application is set aside.
- The Plaintiff’s Application dated 9th September, 2016 is reinstated and to proceed for hearing on merit.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC CASE NO. 109 OF 2016
IRENE KATUMBU KIMANTHI….........…..PLAINTIFF/APPLICANT
VERSUS
PHILIP MWANIA…………………….DEFENDANT/RESPONDENT
RULING
1. What is before me is the Application dated 28th September, 2016.
2. In the Application, the Plaintiff is seeking for the following orders:
a. The order made on 28th September, 2016 dismissing the Plaintiff’s Application be set aside and the Application dated 9th September, 2016 to be reinstated and to proceed for hearing on merit.
3. The Application is premised on the grounds that when the Application of 9th September, 2016 was called out in the morning, the Plaintiff was in court but his advocate was in the registry filing the return of service; that there was no Appearance or Replying Affidavit which had been served on the Defendant’s advocate and that he was unaware that the Defendant’s Advocate would be in court.
4. In response, the Defendant’s advocate deponed that it is puzzling that the Plaintiff did not stand up when the matter was called out if indeed she was in court on 28th September, 2016; that is equally puzzling that the Plaintiff’s advocate did not instruct an advocate to hold his brief and that it is clear that the Plaintiff and her advocate are not keen to prosecute the Application dated 9th September, 2016.
5. The parties’ advocates appeared before me on 26th October, 2016 and informed me that they will rely on the Affidavits on record.
6. The record shows that on 28th September, 2016, when this matter was called out for the hearing of the Plaintiff’s Application dated 9th September, 2016, neither the Plaintiff nor her advocate were in court.
7. In their absence, the Defendant’s advocate applied for the dismissal of the Application for want of prosecution. The court granted the said oral Application and dismissed the Application dated 9th September, 2016.
8. The Plaintiff’s advocate has filed an Affidavit in which he has deponed that on 28th September, 2016, he was in the registry filing the return of service when the matter was called out; that he walked in court when the matter had already been called and the Application dated 9th September, 2016 dismissed and that he indeed spoke to the Defendant’s advocate who was walking out of the court after the dismissal of the Application.
9. The record shows that the Defendant’s advocate filed his Notice of Appointment and the Replying Affidavit on the eve of the hearing of the Application dated 9th September, 2016.
10. There is no evidence to show that on 28th September, 2016 when the matter came up for the hearing of the Application dated 9th September, 2016, the Defendant’s advocate had served his colleague with the Notice of Appointment and the Replying Affidavit.
11. In the circumstances, I believe the Plaintiff’s advocate’s deposition that he was in the registry filing a return of service when the matter was called out.
12. The Plaintiff’s advocate also filed the current Application the same day the Application was dismissed, meaning that he was in the precinct of the court.
13. In the circumstances, I allow the Application dated 28th September, 2016 as prayed.
DATED AND DELIVERED AT MACHAKOS THIS 3RDDAY OF MARCH, 2017.
OSCAR A. ANGOTE
JUDGE