[2019] KEELC 468 (KLR)
The court found that the Applicant had demonstrated diligence in following up her case and had paid her advocate to file the application to set aside the dismissal, but was let down by her advocate's failure to act. The court held that it would be unjust to punish the Applicant for her advocate's omission,...
Source-derived case information.
- Citation
- [2019] KEELC 468 (KLR)
- Parties
- Applicant: Jane W. Gakungu; Respondent: Michael M. Gakungu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 450 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and for Deposit of Sale Proceeds
- Outcome
- application allowed
- Legal Topics
- Setting Aside Dismissal, Division of Sale Proceeds, Joint Property Acquisition, Advocate Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane W. Gakungu
Applicant
Michael M. Gakungu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and for Deposit of Sale Proceeds
Legal Issues
- 1 Whether the court should set aside the dismissal order issued on 18/05/2017 for non-attendance.
- 2 Whether the Respondent should be ordered to deposit half the proceeds from the sale of the suit property in court pending hearing of the suit.
Ratio Decidendi
The court found that the Applicant had demonstrated diligence in following up her case and had paid her advocate to file the application to set aside the dismissal, but was let down by her advocate's failure to act. The court held that it would be unjust to punish the Applicant for her advocate's omission, especially where she had produced evidence of her efforts. Exercising its discretion under Order 12 Rule 7 of the Civil Procedure Rules, the court set aside the dismissal order to allow the suit to be heard on its merits. Additionally, to preserve the subject matter and ensure fairness pending determination of the suit, the court ordered the Respondent to deposit half the proceeds from...
Court Disposition
application allowed
Orders
- The dismissal order issued on 18/05/2017 is set aside.
- The Respondent is directed to deposit half the proceeds obtained from the sale of the suit property in court within 60 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 450 OF 2009
IN THE MATTER OF: THE SALE OF A MORTGAGED PROPERTY,
L.R NO. KITISURU 101/C101;
AND
IN THE MATTER OF: THE SHARING OF THE PROCEEDS OF SALE OF L.R. NO. KITISURU 101/101
BETWEEN
JANE W. GAKUNGU..................APPLICANT
VERSUS
MICHAEL M. GAKUNGU....RESPONDENT
RULING
Through the application dated 04/12/2018, the Plaintiff seeks to set aside this court’s orders issued on 18/05/2017 dismissing her suit. She also seeks to have the Respondent ordered to deposit in court half the amount he obtained from the sale of the parcel of land known as Kitsuru-101/C/101, and that the suit be set down for inter partes hearing.
The application was based on the ground that the suit was dismissed on 18/05/2017 due to the Plaintiff’s non-attendance and is supported by the Applicant’s affidavit sworn on 04/12/2018 in which she deponed that she was the Respondent’s estranged wife and that during their stay together, they acquired properties towards whose acquisition she made contributions. She deponed that in July 2005, they jointly purchased Kitisuru-101/C101 through the National Social Security Fund (NSSF) tenant purchase mortgage scheme, and annexed a copy of the agreement with NSSF. She further deponed that they were unable to complete the purchase of the property and it became necessary to dispose it and pay the amount owing to NSSF. She claimed that the Respondent colluded with officials from NSSF to fraudulently sell and transfer the parcel of land without her knowledge.
She deponed that at the time the suit came up for hearing, she was represented by the firm of Harrison Kinyanjui & Co. Advocates, who did not inform her that the suit was fixed for hearing on 18/05/2017. The advocates did not inform her that the suit had been dismissed on 18/05/2017 when she inquired from about the status of her case. She deponed that on the day her case was dismissed, her advocate, Mr. Harrison Kinyanjui was absent and the reason he gave was that he was in a different court when the matter was called out. She deponed that she should not be punished for the errors of her advocate who failed to turn up for the hearing of the suit and later declined to file an application to have the dismissal orders set aside despite the Applicant paying Kshs. 20, 000/= to his firm to enable them file the application. She annexed a receipt dated 27/03/2018 issued by Kinyanjui & Co. Advocates as proof that she followed up on the matter and paid for the filing of the application to set aside the orders dismissing this suit. She also deponed that when her advocates on record failed to act on her instructions, she sought legal advice elsewhere. She urged that it was only fair for the Respondent to deposit half of the sale proceeds he realized from sale of the suit property so that the suit can be heard and determined on its merit.
The Respondent opposed the application through an undated replying affidavit filed on 16/04/2019. Although the Applicant did not object to the filing of the undated affidavit, the court notes that it offends Section 5 of the Oaths and Statutory Declarations Act which requires every commissioner for oaths before whom any oath or affidavit is taken or made under that Act to state in the jurat at what place and on what date the oath or affidavit is taken or made. Be that as it may, the court will still determine the application.
The court has considered the application, the length of time it has taken for it to be filed and the reasons advanced for the delay. Following the judgement entered on 18/05/2017, the Respondent sold the suit property and retained all the proceeds of the sale.
Under order 12 rule 7 of the Civil Procedure Rules, this court has discretion to vary an order dismissing a suit under Order 12 of the Rules. The Applicant blames her advocates for the dismissal. The record indicates that her advocates were represented in court when the matter was dismissed. The Advocate representing her counsel told the court that they were unable to reach the Applicant. However, the Applicant denied being informed that the matter was coming up for hearing and produced the receipt dated 27/03/2018 issued by her previous advocates to confirm that she gave instructions to her advocates.
The court agrees with the Applicant’s submission that she deserves a chance to be heard on the suit on merit. The application dated 04/12/2018 is allowed. The Respondent is directed to deposit half the proceeds he obtained from the sale of the suit property in court within 60 days. Costs shall be in the cause.
Dated and delivered at Nairobi this 18th day of November 2019
K.BOR
JUDGE
In the presence of: -
Ms. P. Wambugu holding brief for Mr. Kamwaro for the Applicant.
Mr. V. Owuor- Court Assistant
No appearance for the Respondent.