[2018] KEELC 2185 (KLR)
The court found that the 3rd defendant's advocates had been actively involved in the proceedings and that the failure to attend court on the material date was satisfactorily explained. The applicant's counter-claim was not frivolous, and the plaintiff failed to demonstrate any prejudice that would result from...
Source-derived case information.
- Citation
- [2018] KEELC 2185 (KLR)
- Parties
- Plaintiff: Isaac Mwaura; Defendant: Peter Karuga; Defendant: Wanjiru Mbecha; Defendant: Peninah Njoki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 941 of 2012
- Procedural Posture
- Notice of Motion / Ruling on Application for Reinstatement of Defence and Counter Claim
- Outcome
- Application allowed; 3rd defendant's defence and counter-claim reinstated.
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Exercise of Discretion, Counter Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Mwaura
Plaintiff
Peter Karuga
Defendant
Wanjiru Mbecha
Defendant
Peninah Njoki
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Reinstatement of Defence and Counter Claim
Legal Issues
- 1 Whether the 3rd defendant's defence and counter-claim should be reinstated after dismissal for non-attendance.
- 2 Whether the applicant has provided sufficient explanation for failure to attend court.
- 3 Whether the plaintiff would suffer prejudice if the application is granted.
Ratio Decidendi
The court found that the 3rd defendant's advocates had been actively involved in the proceedings and that the failure to attend court on the material date was satisfactorily explained. The applicant's counter-claim was not frivolous, and the plaintiff failed to demonstrate any prejudice that would result from reinstatement. Exercising its discretion judiciously, the court allowed the application to reinstate the 3rd defendant's defence and counter-claim, holding that justice required the parties to be heard on the merits.
Court Disposition
Application allowed; 3rd defendant's defence and counter-claim reinstated.
Orders
- Notice of Motion dated 18th September, 2017 allowed in terms of prayers 1 and 2.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COUR
AT NAIROBI
ELC SUIT NO. 941 OF 2012
ISAAC MWAURA................................................PLAINTIFF
VERSUS
PETER KARUGA.......................................1STDEFENDANT
WANJIRU MBECHA................................2ND DEFENDANT
PENINAH NJOKI......................................3RD DEFENDANT
RULING
I have considered the 3rd defendant’s Notice Motion application dated 18th September, 2017 together with the supporting affidavit. I have also considered the replying affidavit sworn by the plaintiff on 20th November, 2017 in opposition to the application. Finally, I have considered the submissions that were made before me by the advocates for both parties on 23rd November, 2017. The orders sought by the 3rd defendant/applicant are discretionary. The discretionary power of the court has to be exercised judiciously and not capriciously or whimsically.
Having considered the nature of the dispute between the parties as brought out in the plaint, the applicant’s defence and counter-claim, the bundle of documents and witness statements and the circumstances under which the suit and the applicant’s defence and counter-claim were dismissed, I am inclined to exercise my discretion in favour of granting the orders sought by the applicant.I have noted from the record that the applicant’s advocates have been actively following this case from the time they entered appearance and filed a defence and counter-claim. I have noted further that the said advocates were present on 27th April, 2017 when the matter was fixed for hearing and appeared in court on 24th May, 2017 when the matter was dismissed. This shows that the applicant has always been interested in defending the plaintiff’s claim against her and also prosecuting her counter-claim. I am surprised that the plaintiff whose case was also dismissed is opposing the reinstatement of the applicant’s defence and counter-claim. Having reviewed the pleadings, I am satisfied that the applicant’s counter-claim is not frivolous. The applicant should therefore be given an opportunity to pursue the same. The plaintiff has not convinced me that he will suffer any prejudice if the orders sought are granted. The failure by the applicant to attend court on 24th May, 2017 has been explained and is excusable.
Due to the foregoing, I will allow the Notice of Motion dated 18th September, 2017 which I hereby do in terms of prayers 1and 2 thereof. The costs of the application shall be in the cause.
Delivered and Dated at Nairobi this 26th day of July 2018
S. OKONG’O
JUDGE
Ruling read in open court before:
...........................................for the Plaintiff
...................................for the 1stDefendant
.................................for the 2nd Defendant
.................................for the 3rd Defendant
..........................................Court Assistant