[2018] KEELC 2480 (KLR)
The court found that the suit was dismissed without notice to the applicant, depriving him of the opportunity to show cause as required by law. The applicant demonstrated that the suit was ready for hearing and that there had been substantial compliance with pre-trial procedures. The defendant did not oppose the...
Source-derived case information.
- Citation
- [2018] KEELC 2480 (KLR)
- Parties
- Plaintiff: Jacob Makunyi; Defendant: Diego Nkambi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 202 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; dismissal order set aside; suit reinstated for hearing.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal of Suit, Reinstatement of Suit, Notice to Show Cause, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Makunyi
Plaintiff
Diego Nkambi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal order issued on 17.1.2018 should be set aside.
- 2 Whether the suit should be reinstated for hearing.
- 3 Whether the applicant was denied notice to show cause prior to dismissal.
Ratio Decidendi
The court found that the suit was dismissed without notice to the applicant, depriving him of the opportunity to show cause as required by law. The applicant demonstrated that the suit was ready for hearing and that there had been substantial compliance with pre-trial procedures. The defendant did not oppose the application. In the interest of justice and to uphold the right to be heard, the court exercised its discretion to set aside the dismissal order and reinstate the suit for hearing.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated for hearing.
Orders
- The dismissal order issued on 17.1.2018 is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. 202 OF 2017
FORMERLY MERU ELC. 198 OF 2013
JACOB MAKUNYI..................................PLAINTIFF
VERSUS
DIEGO NKAMBI.....................................DEFENDANT
RULING
1. This application is dated 2nd July, 2018 and seeks orders:
a) That the dismissal order issued on the 17. 1.2018 be set aside.
b) That the suit be reinstated for hearing.
c) Costs of the application be costs in the cause.
2. It has the following grounds:
1. That the suit was dismissed without notice to the applicant.
2. That had the applicant been given notice to show cause sufficient cause would have been shown to the satisfaction of the court.
3. That the applicant has been greatly prejudiced by the dismissal.
4. That the dismissal has denied the applicant an opportunity to be heard while he has a good case.
3. When the matter was heard interpartes on 18. 7.2018, Mr. Mwenda told the court that he and his client had not been served with the notice to show cause. He told the court that the parties had substantially complied with order 11, CPR and that the suit was ready for hearing.
4. Mr. Charles Muchiri, holding brief for Mr. Nyamu Nyaga for the defendant, told the court that the defendant was not opposed to the application.
5. In the interest of justice, this application is allowed.
6. Costs shall be in the cause.
7. Suit to be heard on 18th September, 2018.
8. It is so ordered.
Delivered in open court at Chuka this 18th day of July, 2018 in the presence of:
CA: Ndegwa
Murango Mwenda for the plaintiff
Charles Muchiri h/b Nyamu Nyaga for the defendant
P.M. NJOROGE
JUDGE