[2018] KEELC 1836 (KLR)
The court found that the applicant had provided a plausible explanation for the failure to prosecute the suit, namely that the submissions were filed in the wrong file due to a registry error and that counsel was unwell. Exercising judicial discretion, the court determined that these circumstances warranted the...
Source-derived case information.
- Citation
- [2018] KEELC 1836 (KLR)
- Parties
- Applicant: Jackson Kabunga M’Kirera; Respondent: Mike Kailemia Ntong’ondu; Respondent: Francis Kunyanga Ntong’ondu; Respondent: Mugambi M’Thiritu Manyara
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 44 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Suit
- Outcome
- Application allowed; suit reinstated subject to conditions.
- Legal Topics
- Reinstatement of Suit, Setting Aside Orders, Review of Judgment, Filing Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kabunga M’Kirera
Applicant
Mike Kailemia Ntong’ondu
Respondent
Francis Kunyanga Ntong’ondu
Respondent
Mugambi M’Thiritu Manyara
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for reinstatement of the dismissed suit.
- 2 Whether the court should exercise its discretion to set aside or vary the orders of 7th December 2017.
- 3 Whether the applicant's submissions being filed in the wrong file constitutes a valid reason for review.
Ratio Decidendi
The court found that the applicant had provided a plausible explanation for the failure to prosecute the suit, namely that the submissions were filed in the wrong file due to a registry error and that counsel was unwell. Exercising judicial discretion, the court determined that these circumstances warranted the setting aside of the dismissal order and reinstatement of the suit, provided that the applicant files and serves the necessary submissions within 14 days. The court balanced the need for finality in litigation with the interests of justice, concluding that the applicant should be given an opportunity to be heard on the merits, subject to compliance with the stated condition and...
Court Disposition
Application allowed; suit reinstated subject to conditions.
Orders
- The orders of 7th December 2017 dismissing the suit are varied.
- The suit is reinstated on condition that the applicant files and serves submissions within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 44 OF 2014
JACKSON KABUNGA M’KIRERA..........................APPLICANT
VERSUS
MIKE KAILEMIA NTONG’ONDU.............. 1ST RESPONDENT
FRANCIS KUNYANGA NTONG’ONDU......2ND RESPONDENT
MUGAMBI M’THIRITU MANYARA...........3RD RESPONDENT
RULING
1. The application dated 10. 3.2017 seeks for the reinstatement of this suit, which suit was dismissed on 7/12/2017. To this end, applicant prays for review, setting aside and/or variation of the judgment/decree made on 7th December, 2017 as per court order made on 23rd October 2017 dismissing this Misc. Application.
2. I have considered all the arguments raised herein and the submissions of the parties. Applicant avers that their submissions were filed in the wrong file by the court registry In HCC No. 44 of 2013 instead of HCCA No. 44 of 2014. Counsel for the applicant has also averred that she was sick.
3. I will give the applicant the benefit of doubts. I hence exercise my discretion and hereby vary the orders of 7. 12. 2017. This suit is reinstated on condition that the submissions of the applicant are availed (filed and served) within 14 days from date of delivery of this ruling.
4. Applicant is to pay costs of the present application.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 26TH DAY OF SEPTEMBER, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
CP Mbaabu for respondent
Rimita for applicant
HON. LUCY. N. MBUGUA
ELC JUDGE