[2018] KEELC 906 (KLR)
The court found that the plaintiff's non-attendance, as well as that of his previous advocate, was neither intentional nor meant to defeat the course of justice. The plaintiff demonstrated a genuine desire to prosecute the case by engaging a new advocate and promptly seeking reinstatement. The court exercised its...
Source-derived case information.
- Citation
- [2018] KEELC 906 (KLR)
- Parties
- Plaintiff: James Mwaniki Kinuthia; Defendant: Idd Rajab
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Muranga
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 224 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Non Attendance
- Outcome
- application for reinstatement allowed
- Judges
- BC Koech
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Judicial Discretion, Order 12 Rule 7, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwaniki Kinuthia
Plaintiff
Idd Rajab
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Non Attendance
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of attendance.
- 2 Whether the plaintiff's non-attendance was intentional or meant to defeat justice.
Ratio Decidendi
The court found that the plaintiff's non-attendance, as well as that of his previous advocate, was neither intentional nor meant to defeat the course of justice. The plaintiff demonstrated a genuine desire to prosecute the case by engaging a new advocate and promptly seeking reinstatement. The court exercised its discretion under Order 12 rule 7 of the Civil Procedure Rules to allow the application for reinstatement, holding that the interests of justice would be better served by allowing the suit to proceed on its merits rather than penalizing the plaintiff for the procedural lapse.
Court Disposition
application for reinstatement allowed
Orders
- The plaintiff's application dated 6/7/18 for reinstatement of the suit is allowed.
- No order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MURANG’A
ELC NO. 224 OF 2017
JAMES MWANIKI KINUTHIA.................................PLAINTIFF
VS
IDD RAJAB................................................................DEFENDANT
RULING
1. On 13/2/17 the Court made an order in the presence of the Plaintiff’s Advocate and in the absence of the Defendant’s Advocate that the case be mentioned on 18/1/18. On the 18/1/18 both parties and all their advocates did not attend Court. Consequently, the Court dismissed the case for want of attendance.
2. On the 9/7/18 the Plaintiff filed an application seeking reinstatement of the suit. The application is supported by the affidavit sworn by the Plaintiff on 6/7/18 and a further affidavit of even date by the Plaintiff’s Advocate namely, Julius N Kirubi Advocate.
3. The Defendant through his Advocate on record filed an affidavit in response to the averments to the Plaintiff and his Advocate. The parties have also filed written submissions on the 23/8/18 and 19/9/2018 by the Defendant and Plaintiff respectively.
4. The Court has considered the Notice of Motion, the rival affidavits filed and the written submissions filed by the parties. The power vested in the trial Court to set aside the order dismissing the suit for non-attendance is contained in the provisions of Order 12 rule 7 of the Civil Procedure Rules. It is a discretionary power that is exercised by the Court.
5. The Court has considered the reasons for non-attendance of Court of the Plaintiff on the material date. More particularly that the Plaintiff has expressed desire to prosecute his case and has engaged the services of a new Advocate. The Court is satisfied that the non-attendance by himself and his previous Advocate was not intentional nor meant to defeat the course of justice.
6. In the circumstances the Court is inclined to allow the Plaintiff’s application dated the 6/7/18 as prayed with no orders as to costs.
DELIVERED, DATED AND SIGNED AT MURANG’A THIS 8TH NOVEMBER 2018
J.G. KEMEI
JUDGE
Delivered in open Court in the presence of;
Mbuthia for the Plaintiffs
Defendant 1
Defendant 2
Defendant 3
Defendant 4
Defendant 5
Defendant 6. ..............Kirubi for the Defendants.
Irene and Njeri, Court Assistant