[2019] KEELC 1673 (KLR)
The court found that the applicant was prejudiced by the dismissal of the suit without proper notice, as the consolidation of ELC 34/2011 and ELC 51/2011 led to procedural confusion. Since the applicant was not a party in the lead file and no directions were given regarding his original file, he was not aware of the...
Source-derived case information.
- Citation
- [2019] KEELC 1673 (KLR)
- Parties
- Plaintiff: Isaya Kimathi; Defendant: Nicholas Muriungi Mburugu; Defendant: Julia Kariuntu Mugambi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 34 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Suit
- Outcome
- application allowed; suit reinstated
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Consolidation of Suits, Prejudice Due to Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Isaya Kimathi
Plaintiff
Nicholas Muriungi Mburugu
Defendant
Julia Kariuntu Mugambi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the plaintiff's suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the plaintiff was prejudiced by the consolidation and subsequent dismissal without notice.
Ratio Decidendi
The court found that the applicant was prejudiced by the dismissal of the suit without proper notice, as the consolidation of ELC 34/2011 and ELC 51/2011 led to procedural confusion. Since the applicant was not a party in the lead file and no directions were given regarding his original file, he was not aware of the dismissal date. Furthermore, the application was unopposed. The court exercised its discretion to reinstate the suit in the interests of justice, holding that the applicant should not suffer due to procedural irregularities arising from consolidation and lack of notice.
Court Disposition
application allowed; suit reinstated
Orders
- The application dated 20.11.2018 is allowed.
- The suit is reinstated.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 34 OF 2011
ISAYA KIMATHI.......................................................................PLAINTIFF
VERSUS
NICHOLAS MURIUNGI MBURUGU........................1ST DEFENDANT
JULIA KARIUNTU MUGAMBI.................................2ND DEFENDANT
RULING
1. Vide the application dated 20. 11. 2018, the plaintiff in ELC No. 51 of 2011 (Isaya Kimathi) sought to have the suit reinstated as the same was dismissed on 12. 2.2018. The grounds in support of the application are on the face of the notice of notion and in his supporting affidavit.
2. Applicant avers that he is the plaintiff in ELC no. 51/2011 which suit was consolidated with ELC 34 of 2011 on 11. 7.2017. A notice to show cause why the suit should not be dismissed was issued and the suit was dismissed on 12. 2.2018.
3. Applicant avers that he was not a party in ELC 34/2011 hence he was not aware of the date of 12. 2.2018. He further states that he stands to be prejudiced if this application is not allowed as no directions were given in respect of file no. 51/11.
4. I find that on 11. 7.2017 directions were given in ELC No. 51/2011 whereby the two files ELC 34/11 and ELC 51/11 were consolidated and the running file was to be ELC 34/11 as no. 34/11 was the lead file. I am hence in agreement with applicants submissions that he was prejudiced by the order of dismissal.
5. Further, I note that none of the respondents have opposed the application. I am therefore inclined to allow the application dated 20. 11. 2018. The costs of the application shall abide the outcome of the suit.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 25TH DAY OF SEPTEMBER, 2019
IN THE PRESENCE OF:-
C/A: Kananu
Ogoti for applicant
Applicant
HON. LUCY. N. MBUGUA
ELC JUDGE