[2018] KEELC 2563 (KLR)
The court found that the hearing date was taken ex parte in the absence of the plaintiff's advocate, who had received the hearing notice under protest due to being engaged in other matters. The court held that the mistake of the advocate in failing to attend should not be visited upon the plaintiff, particularly as...
Source-derived case information.
- Citation
- [2018] KEELC 2563 (KLR)
- Parties
- Plaintiff: Jackson Shintu Kimuma; Defendant: Chairman Board of Management; Defendant: Oldonyorok Secondary School; Defendant: Paul Ruto (Chief); Defendant: Land Registrar Transmara; Defendant: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 330 of 2017
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed; suit reinstated
- Judges
- MN Kullow
- Legal Topics
- Setting Aside Dismissal, Reinstatement of Suit, Exercise of Discretion, Non Attendance, Hearing Notice, Interests of Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Shintu Kimuma
Plaintiff
Chairman Board of Management
Defendant
Oldonyorok Secondary School
Defendant
Paul Ruto (Chief)
Defendant
Land Registrar Transmara
Defendant
Hon. Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should exercise its discretion to set aside the dismissal order and reinstate the suit.
- 2 Whether the plaintiff's advocate's failure to attend court should be visited upon the plaintiff.
- 3 Whether the application for reinstatement was made without inordinate delay.
Ratio Decidendi
The court found that the hearing date was taken ex parte in the absence of the plaintiff's advocate, who had received the hearing notice under protest due to being engaged in other matters. The court held that the mistake of the advocate in failing to attend should not be visited upon the plaintiff, particularly as the application to set aside the dismissal was made without inordinate delay. The court further reasoned that reinstating the suit would serve the interests of justice by allowing the matter to be heard on its merits. Consequently, the court exercised its discretion to set aside the dismissal order and reinstate the suit.
Court Disposition
application allowed; suit reinstated
Orders
- The Plaintiff's Application dated 26th September, 2017 is allowed.
- The order of dismissal of the suit dated 18th September, 2017 is set aside.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 330 OF 2017
FORMERLY ELC KISII NO. 15 OF 2017
JACKSON SHINTU KIMUMA....................................PLAINTIFF
-VERSUS-
CHAIRMAN BOARD OF MANAGEMENT......1ST DEFENDANT
OLDONYOROK SECONDARY SCHOOL....2ND DEFENDANT
PAUL RUTO (CHIEF)..........................................3RD DEFENDANT
LAND RREGISTRAR TRANSMARA...............4TH DEFENDANT
HON. ATTORNEY GENERAL...........................5TH DEFENDANT
RULING
This Application before me is for determination of the Plaintiff’s Notice of Motion dated 26th September, 2017 brought under order 12(7) of the Civil Procedure Rules and section 1A 1B of the Civil procedure Act seeking the setting aside of an order made by this court on 18th September, 2017 dismissing the suit and reinstating the same.
The Application is based on the grounds that the date the suit was fixed was for hearing, the same was not convenient as the plaintiff advocate was engaged in Nyamira law courts and he listed 8 matters that he was engaged in. He further stated that the hearing notice was received under protest and that his mistake not to attend court on the said date should not be visited upon the Plaintiff.
The Respondent opposed the said Application and filed a Replying Affidavit stating that the Plaintiff’s advocate chose to stay away from court despite service of a hearing Notice and that the Plaintiff has failed to prosecute the case since filing the same.
I have read the Application before me and the Replying Affidavit filed in opposition to the same and the issue for determination before me is whether the applicant herein deserves the discretion of the court in reinstating the suit.
The Applicant’s suit was dismissed on the 18th September, 2017 when counsel failed to appear. However, from the record it is evident that the hearing date was taken exparte in the absence of the Plaintiff’s advocate and since he states that he received the said notice under protest as he was engaged elsewhere I should not visit the mistake on the plaintiff.
Secondly, the plaintiff was without any inordinate delay applied for the setting aside of the order for dismissal which in my mind shows his desire to have the matter heard.
Lastly it shall serve the interest of justice if the suit herein is heard on merit.
The upshot of the above is that I will allow the Plaintiff’s Application dated 26th September, 2017 and I set aside my order of dismissal of the suit dated 18th September, 2017 and that the dismissed suit is reinstated.
Orders accordingly.
DATED, SIGNED and DELIVERED in open court at NAROK on this 7TH day of FEBRUARY, 2018
Mohammed Noor Kullow
Judge
7/2/18
In the presence of:
O.M. Otieno for 1st and 2nd defendant
N/A for the plaintiff
Mohamed Noor Kullow
Judge
7/2/18