[2019] KEELC 3549 (KLR)
The court found that the applicant's reasons for absence—namely, attending a call despite being present in court, the late arrival of counsel due to short notice, and the applicant's medical condition—were not controverted by the respondent. The court emphasized that justice requires matters to be determined on...
Source-derived case information.
- Citation
- [2019] KEELC 3549 (KLR)
- Parties
- Plaintiff: Isaac M.M. Mukhambala; Defendant: Richard Ombimo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 128 of 2012
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Dismissal
- Outcome
- Application to set aside dismissal granted.
- Judges
- FM Njoroge
- Legal Topics
- Setting Aside Dismissal, Reinstatement of Suit, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac M.M. Mukhambala
Plaintiff
Richard Ombimo
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Dismissal
Legal Issues
- 1 Whether the order dismissing the suit should be set aside to allow the plaintiff to prosecute his case.
- 2 Whether the plaintiff's absence and his counsel's late arrival constitute sufficient cause for reinstatement of the suit.
Ratio Decidendi
The court found that the applicant's reasons for absence—namely, attending a call despite being present in court, the late arrival of counsel due to short notice, and the applicant's medical condition—were not controverted by the respondent. The court emphasized that justice requires matters to be determined on their merits rather than technicalities. Exercising its unfettered discretion, the court set aside the dismissal order to allow the plaintiff to prosecute his case, holding that the interests of justice outweighed procedural lapses in this instance.
Court Disposition
Application to set aside dismissal granted.
Orders
- The application dated 11/3/2019 is granted in terms of prayers (a) and (b).
- The costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 128 OF 2012
ISAAC M.M. MUKHAMBALA.............................PLAINTIFF
VERSUS
RICHARD OMBIMO..........................................DEFENDANT
RULING
1. By an application dated 5/3/2019 and filed in court on 6/3/1019 the plaintiff sought for orders that the order dismissing the suit and all consequential proceedings be set aside to enable the plaintiff ventilate his case.
2. The grounds relied upon are the applicant’s suit was dismissed while he was attending a call yet he had been in court all along on the day of the hearing, that he has substantial interest in the property and would suffer grave and irreparable loss of ancestral land if the orders do not issue; that his counsel arrived in court late only to find that the matter had been called out and that the hearing notice was only one day and this contributed to the late arrival of counsel for the applicant. The supporting affidavit reiterates the above grounds.
3. The respondent filed only grounds of opposition in response to the application. None of the parties filed any submissions but they relied on the filed documents.
4. I have considered the application and the supporting affidavit. The grounds in the replying affidavit, and particularly the ground that the applicant has a medical condition and that the hearing notice was served only one day earlier, are not in any event controverted by the respondent. This is a court of justice and the suits before it must be as far as practicable be dealt with on their merits.
5. I am for the above reasons inclined to exercise my unfettered discretion in favour of the applicant. I hereby grant the application dated 11/3/2019 in terms of prayers (a) and (b) thereof. The costs of the application shall be in the cause.
Dated, signed anddeliveredatKitale on this6thday of May, 2019.
MWANGI NJOROGE
JUDGE
6/5/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Nyamu for defendant
Sichangi (absent) for plaintiff
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
6/5/2019