[2020] KEELC 1285 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for non-attendance on the hearing date and did not comply with previous court orders regarding service and prosecution of the application. The court emphasized that urgent applications require diligence and strict compliance with...
Source-derived case information.
- Citation
- [2020] KEELC 1285 (KLR)
- Parties
- Appellant: Joseph Kaberia Kumari; Respondent: Tony Mwenda Muthaura
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 99 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Reinstatement of Dismissed Application
- Outcome
- application dismissed with costs
- Legal Topics
- Reinstatement of Application, Dismissal for Nonattendance, Service of Process, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kaberia Kumari
Appellant
Tony Mwenda Muthaura
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Reinstatement of Dismissed Application
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the reinstatement of the dismissed application.
- 2 Whether the applicant complied with previous court orders regarding service and prosecution of the application.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for non-attendance on the hearing date and did not comply with previous court orders regarding service and prosecution of the application. The court emphasized that urgent applications require diligence and strict compliance with directions. The attempt by the applicant to re-argue issues from the dismissed application in the present application was improper. Consequently, the court held that there was no merit in the application for reinstatement and dismissed it with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 30.10.2019 is dismissed with costs.
- The applicant is directed to file and serve the record of appeal within 30 days from the date of delivery of this ruling, failing which the appeal shall stand dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC APPEAL NO. 99 OF 2019
JOSEPH KABERIA KUMARI ....APPELLANT/APPLICANT
VERSUS
TONY MWENDA MUTHAURA .....................RESPONDENT
RULING
1. Vide an application dated 30. 10. 2019, the appellant/applicant is seeking orders for reinstatement of his application dated 7. 8.2019 which was dismissed on 28. 10. 2019. The application is premised on the grounds on the face of it and on the affidavit of Winnie Matiri, advocate for the applicant. It is averred that on 28. 10. 2019, the advocate for the applicant had many matters including succession cause No. 559 of 2011 in High court.
2. On 27. 1.2020, the court gave directions for the application dated 30. 10. 2019 to be canvassed by way of written submissions. The applicant duly filed his submissions.
3. I note that the application dated 7. 8.2019 was filed under a certificate of urgency, such that the file even had to be transmitted to Embu ELC for hearing in the first instance. The applicant obtained some of the orders (in particular the order of inhibition) and a date of 23. 9.2019 was given. The applicant was also directed to serve the application. Come 23. 9.2019, and service had not been effected hence the court gave the applicant the date of 28. 10. 2019. Come 28. 10. 2019 and there was no appearance for the applicant hence the dismissal of the application. Applications of this nature are the ones which clog the court’s systems.
4. Having filed an application under a certificate of urgency the applicant ought to have been diligent enough and prosecute the same as per court’s directions. There is no good reason as to why the orders of my brother Judge Angima of 14. 8.2019 (on service) and the orders of this court of 29. 9.2019 (on hearing) were not complied with.
5. I also note that in the present application, the applicant is attempting to argue the issues raised in the dismissed application.
6. All I can say is that the application is not merited. The same is dismissed with costs.
7. The applicant is directed to file and serve the record of appeal within 30 days from the date of delivery of this ruling failure to which this appeal shall stand as dismissed.
8. Mention before the DR on 4. 11. 2020.
DATED, SIGNED AND DELIVERED AT MERU THIS 30TH DAY OF SEPTEMBER, 2020
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this ruling was given on 13. 7.2020. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE