[2018] KEELC 1586 (KLR)
The court found that the applicant had provided a plausible explanation for his non-attendance, namely a hypertensive condition, and that he had a potentially meritorious claim as a bona fide purchaser for value. In balancing the interests of justice and the need to dispose of old cases, the court exercised its...
Source-derived case information.
- Citation
- [2018] KEELC 1586 (KLR)
- Parties
- Plaintiff: Johnson Nkonge O. M’Rucha; Defendant: John Phares Njeru M’Ithaara; Applicant: Abdul Rashid Mbae Magambo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 108 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit reinstated conditionally.
- Judges
- FM Njoroge
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Bona Fide Purchaser, Civil Procedure Rules, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Nkonge O. M’Rucha
Plaintiff
John Phares Njeru M’Ithaara
Defendant
Abdul Rashid Mbae Magambo
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the Interested Party's case should be set aside and the suit reinstated.
- 2 Whether the applicant has provided sufficient cause for non-attendance at the hearing.
- 3 Whether the interests of justice require the suit to be heard on its merits.
Ratio Decidendi
The court found that the applicant had provided a plausible explanation for his non-attendance, namely a hypertensive condition, and that he had a potentially meritorious claim as a bona fide purchaser for value. In balancing the interests of justice and the need to dispose of old cases, the court exercised its discretion to reinstate the suit, but imposed a strict condition that the applicant must attend court on the next scheduled hearing date. Failure to do so would result in the suit remaining dismissed. The court emphasized the importance of cooperation by advocates and parties to ensure timely disposal of long-pending cases, in line with judiciary policy.
Court Disposition
Application allowed; suit reinstated conditionally.
Orders
- The suit is reinstated on condition that the applicant appears in court on 3rd October, 2018 to give evidence.
- If the applicant fails to attend on 3rd October, 2018, the suit will remain dismissed.
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 108 OF 2017
FORMRLY MERU ELC CASE NO. 12 OF 2009
JOHNSON NKONGE O. M’RUCHA.................................................PLAINTIFF
VERSUS
JOHN PHARES NJERU M’ITHAARA..............DEFENDANT/RESPONDENT
ABDUL RASHID MBAE MAGAMBO....INTERESTED PARTY/APPLICANT
RULING
1. This application is dated 1st October, 2018. It seeks the following orders:
1. That application be certified a urgent and heard on priority basis.
2. That this honourable court be pleased to set aside the dismissal of the herein Interested Party’s case and reinstate the same for hearing.
3. That the costs of this application be provided for.
2. The application is supported by the affidavit of Abdul Rashid Mbae Magambo and has the following grounds:
a) That the Interested Party has a case which ought to be heard on merit.
b) That he is a bonafide purchaser for the land in dispute and he has paid the consideration in full.
c) That the non-attendance of the Interested party in court on the day of the hearing was as a result of hypertension condition and called in sick.
d) That the Interested party has a good case and should be allowed to ventilate the same.
3. In his affidavit sworn on 1st October, 2018, the applicant admits that he knew that this suit was going to be heard on 24th September, 2018 but he could not attend court as he had a hypertensive condition. He says that he stands to suffer great loss as he is a purchaser for value of the suit land.
4. As this application may have the ramification of messing this court’s calendar, I find it necessary to give a ruling immediately. Miss Munga, the applicant’s advocate, asked the court, in the interest of justice, to reinstate the suit so that the applicant could be heard. Mr. K’Opere, for the defendants, opposed the application on the basis that the suit had already been dismissed.
5. In the interest of justice, I will reinstate the suit so that hearing of the suit can proceed as scheduled on 3rd October, 2018. However, if the applicant does not turn up to give his evidence on 3rd October, 2018, his suit will once again stand dismissed in terms of Order 12 rule 1 of the Civil Procedure Rules. Hearing of the suit will proceed as scheduled.
6. I observe that advocates, being officers of the court, are aware of the Judiciary’s policy that suits over 5 years in age ought to be disposed of by December, 2018. This suit is 10 years old. Advocates and parties should cooperate to actualize this noble endeavour. Justice delayed is justice denied.
7. The suit is reinstated on condition that the applicant comes to court on 3rd October, 2018 to give his evidence. If he will not be in court, the suit will remain dismissed.
8. It is so ordered.
Delivered in open Court at Chuka this 3rd day of October, 2018 in the presence of:
CA: Ndegwa
Miss Munga for the plaintiffs
Mr. K’Opere for the defendants
P.M. NJOROGE
JUDGE