[2018] KEELC 558 (KLR)
The court found that the Plaintiff failed to provide a plausible or sufficient explanation for his non-attendance on the hearing date. There was no evidence of any effort by the Plaintiff to follow up on his case, nor did his former advocate provide an affidavit explaining the failure to notify him or attend court....
Source-derived case information.
- Citation
- [2018] KEELC 558 (KLR)
- Parties
- Plaintiff: John Kimeu Mutua; Defendant: John Kyuli Kamuti; Defendant: Nduti Kivuva; Defendant: Kyalo Kivuva; Defendant: Mbalonzi Kivuva; Defendant: Kamuti Kivuva
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 252 of 2017
- Procedural Posture
- Notice of Motion / Application to Set Aside Dismissal Order and for Change of Advocates
- Outcome
- Application dismissed except for the prayer allowing change of advocates; costs awarded to Defendants.
- Judges
- OA Angote
- Legal Topics
- Dismissal for Non Attendance, Setting Aside Orders, Change of Advocates, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kimeu Mutua
Plaintiff
John Kyuli Kamuti
Defendant
Nduti Kivuva
Defendant
Kyalo Kivuva
Defendant
Mbalonzi Kivuva
Defendant
Kamuti Kivuva
Defendant
Procedural Posture
Notice of Motion / Application to Set Aside Dismissal Order and for Change of Advocates
Legal Issues
- 1 Whether the Plaintiff has provided sufficient reason for non-attendance to warrant setting aside the dismissal order.
- 2 Whether the failure of the Plaintiff's advocate to inform him of the hearing date justifies reinstatement of the suit.
- 3 Whether the Defendants should bear the consequences of the Plaintiff's or his advocate's default.
Ratio Decidendi
The court found that the Plaintiff failed to provide a plausible or sufficient explanation for his non-attendance on the hearing date. There was no evidence of any effort by the Plaintiff to follow up on his case, nor did his former advocate provide an affidavit explaining the failure to notify him or attend court. The court held that the failure of the Plaintiff or his advocate to attend court or inform him of the hearing date cannot be visited upon the Defendants, who had waited over three years for the matter to be heard. Consequently, the application to set aside the dismissal was dismissed, except for the prayer allowing the change of advocates.
Court Disposition
Application dismissed except for the prayer allowing change of advocates; costs awarded to Defendants.
Orders
- Leave is granted to the firm of Ms. Andrew Makundi & Co. Advocates to come on record for the Plaintiff in place of Ms. Rombo & Co. Advocates.
- The application to set aside the dismissal order is dismissed with costs to the Defendants.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 252 OF 2017
JOHN KIMEU MUTUA....................................................PLAINTIFF
VERSUS
JOHN KYULI KAMUTI.........................................1ST DEFENDANT
NDUTI KIVUVA......................................................2ND DEFENDANT
KYALO KIVUVA.....................................................3RD DEFENDANT
MBALONZI KIVUVA.............................................4TH DEFENDANT
KAMUTI KIVUVA..................................................5TH DEFENDANT
RULING
1. In the Notice of Motion dated 21st February, 2018, the Plaintiff is seeking for the following orders:
a. That this Honourable Court be pleased to grant leave to the firm of Ms. Andrew Makundi & Co. Advocates to come on record in place of Ms. Rombo & Co. Advocates and represent the Plaintiff, John Kimeu Mutua.
b. That upon grant of prayer 1 above this Honourable Court be pleased to set aside the orders made on 1st February, 2018 dismissing this suit for non-attendance of the parties.
2. The Application is supported by the Affidavit of the Plaintiff who has deponed that he learnt that the suit he had filed had been dismissed by the court for non-attendance; that his former advocates did not tell him why they had not informed him about the date the matter came up for hearing and that he is desirous of having his case heard on merits.
3. The 1st Defendant filed Grounds of Opposition in which he averred that the suit belongs to the Plaintiff and not his advocates; that it is the business of the Plaintiff to keep in touch with his advocates and that the Plaintiff’s lack of seriousness to prosecute the suit should not be visited upon the Defendants.
4. The Plaintiff’s advocate submitted that courts have unfettered discretion to set aside orders of dismissal for non-attendance; that the Plaintiff was never informed of the date of hearing of this suit and that the Plaintiff is desirous of prosecuting the claim. The Plaintiff’s advocate relied on numerous authorities which I have considered.
5. This suit was filed on 14th November, 2014. On 11th October, 2017, the Plaintiff’s advocate fixed the matter for hearing for 1st February, 2018. Although the date taken by the Plaintiff’s advocate was ex-parte, he never served the Defendants’ advocate with a hearing notice. The matter was dismissed by the court for non-attendance when it came up for hearing on 1st February, 2018.
6. The Plaintiff now blames his advocate for not informing him to attend court on 1st February, 2018. The Plaintiff’s former advocate has not sworn an Affidavit to state why he was not in court on 1st February, 2018. In the case of Habo Agencies Limited vs. Wilfred Odhiambo Musingo (2015) eKLR, the Court of Appeal stated that it is not enough for a party in litigation to simply blame the advocate on record for all manner of transgressions in the conduct of litigation. The court further held that the parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.
7. There is no evidence before me to show the efforts that the Plaintiff took to ascertain the position of the matter between the time the matter was filed until when it was dismissed. If indeed he was never informed of the hearing date by his former advocate, then the said advocate should have sworn an Affidavit to explain why he never notified him of the hearing date. The failure by his advocate to attend court or to inform him of the hearing date cannot be visited on the Defendants, who had been waiting for more than three (3) years to have the suit litigated.
8. For those reasons, find that the Plaintiff has not given a plausible explanation as to why he did not attend court on 1st February, 2018. Save for prayer No. 1, the Application dated 21st February, 2018 is dismissed with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF NOVEMBER, 2018.
O.A. ANGOTE
JUDGE