[2022] KEELC 442 (KLR)
The court found that the applicants had satisfactorily explained the reason for their advocate's non-attendance at the virtual hearing, namely network challenges, which are common and beyond the control of litigants. The court held that denying a party the right to be heard due to such technical difficulties would...
Source-derived case information.
- Citation
- [2022] KEELC 442 (KLR)
- Parties
- Plaintiff: Jonathan Cheruiyot; Plaintiff: Samuel Sang Cheruiyot; Defendant: Esther Mishack
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 814 of 2012
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application allowed; dismissal order set aside; application reinstated for hearing
- Judges
- EO Obaga
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Virtual Hearing Challenges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonathan Cheruiyot
Plaintiff
Samuel Sang Cheruiyot
Plaintiff
Esther Mishack
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the applicants have demonstrated sufficient grounds to warrant the court's discretion to set aside the dismissal order.
- 2 Whether non-attendance by the applicants' advocate due to network challenges is a valid reason for reinstatement of the application.
- 3 Whether the form of the application (notice of motion instead of chamber summons) is fatal to the application.
Ratio Decidendi
The court found that the applicants had satisfactorily explained the reason for their advocate's non-attendance at the virtual hearing, namely network challenges, which are common and beyond the control of litigants. The court held that denying a party the right to be heard due to such technical difficulties would be unjust. Furthermore, the court determined that the use of a notice of motion instead of a chamber summons was a matter of form and not fatal to the application, in line with Order 51 Rule 10(2) of the Civil Procedure Rules. Consequently, the court exercised its discretion to set aside the dismissal order and reinstated the application for hearing.
Court Disposition
application allowed; dismissal order set aside; application reinstated for hearing
Orders
- The order made on 18th October, 2021 dismissing the application dated 2nd September, 2021 is set aside.
- The application dated 2nd September, 2021 is reinstated for hearing.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT ELDORET
ELC CASE NO.814 OF 2012
(FORMERLY CIVIL SUIT NO. 27 OF 2012 (OS)
JONATHAN CHERUIYOT........................1ST PLAINTIFF
SAMUEL SANG CHERUIYOT...............2ND PLAINTIFF
=VERSUS=
ESTHER MISHACK....................................DEFENDANT
RULING:
1. This is a ruling in respect of a Notice of Motion dated 4th November, 2021 in which the Decree holders/Applicant seek to have the orders of 18th October, 2021 dismissing the Applicants’ application dated 2nd September, 2021 set aside and the application dated 2nd September, 2021 allowed to proceed to hearing.
2. The Applicants contend that when their application dated 2nd September, 2021 came up for hearing on 18th October, 2021, their Advocate was unable to log in to the virtual hearing session due to network challenges. The Court proceeded to dismiss the application for non attendance. The Applicants therefore argue that non attendance on the part of their advocate was not deliberate.
3. The Applicants’ deposition has been supported by their advocate in an affidavit sworn on 4th November, 2021. The Advocate states that on the material day, he was not able to log in into the virtual court hearing session due to network challenges.
4. The Applicants’ application is opposed by the judgment debtor/Respondent through grounds of opposition dated 24th July, 2021. The Respondent contends that the Applicants’ application is incompetent for want of form and that the Applicants have not explained why they could not make this application immediately. The Respondent contends that the Applicants had been given leave to file a supplementary affidavit in respect of the dismissed application but that they did not do so and that the said application should not be reinstated.
5. I have considered the Applicants’ application as well as the opposition to the same by the Respondent. The only issue for determination is whether the Applicants have demonstrated that they have grounds to warrant this court exercise discretion in their favour. The Applicants have demonstrated that non attendance of their Advocate in court was due to network problems. This has been confirmed by their Advocate. It is common knowledge that generally there are network challenges. When this occurs, a litigant who is caught up in this situation should not be condemned by not being heard.
6. The fact that the Applicants’ application has been brought as a Notice of motion instead of a chamber summons cannot be used to defeat the application. This is a matter of form which cannot defeat an application as per order 51 Rule 10(2) of the Civil Procedure Rules. A party is entitled to be heard and this right can only be denied for good cause.
7. This is a matter which is concluded. The Applicants are seeking execution. As the reason for non attendance has been satisfactorily explained, I find that the application dated 4th November, 2021 is well merited. The same is allowed with the result that the order made on 18th October, 2021 dismissing application dated 2nd September, 2021 is hereby set aside. The application dated 2nd September, 2021 is hereby reinstated for hearing.
It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 21ST DAY OF APRIL, 2022.
E. OBAGA
JUDGE
In the virtual presence of;
Mr. Kiboi for Plaintiff/Applicant.
Mr. Keter for Mr. Sego for Respondent.
E. OBAGA
JUDGE
21ST APRIL, 2022