[2021] KEELC 4069 (KLR)
The court found that while it doubted the applicants' explanation regarding the lack of a virtual court link, it was in the interests of justice not to shut out the applicants from being heard. Exercising its discretion, the court allowed the application to set aside the dismissal and reinstated the suit, but...
Source-derived case information.
- Citation
- [2021] KEELC 4069 (KLR)
- Parties
- Applicant: Joseph Kahindi NyaIe & 5 Others; Respondent: Henry Clement Farah & 7 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 565 of 2011
- Procedural Posture
- Miscellaneous Application / Application for Reinstatement After Dismissal for Non Attendance
- Outcome
- Application allowed; suit reinstated subject to payment of throw away costs.
- Legal Topics
- Adverse Possession, Reinstatement of Suit, Dismissal for Non Attendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kahindi NyaIe & 5 Others
Applicant
Henry Clement Farah & 7 Others
Respondent
Procedural Posture
Miscellaneous Application / Application for Reinstatement After Dismissal for Non Attendance
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be set aside and the suit reinstated.
- 2 Whether the applicants' explanation for non-attendance due to lack of virtual court link is sufficient.
- 3 Whether the respondents are entitled to throw away costs if the suit is reinstated.
Ratio Decidendi
The court found that while it doubted the applicants' explanation regarding the lack of a virtual court link, it was in the interests of justice not to shut out the applicants from being heard. Exercising its discretion, the court allowed the application to set aside the dismissal and reinstated the suit, but imposed throw away costs of Kshs. 10,000 to be paid to the 6th respondent, whose counsel was present and ready to proceed. The court emphasized that the costs must be paid within 14 days, failing which the suit would remain dismissed.
Court Disposition
Application allowed; suit reinstated subject to payment of throw away costs.
Orders
- The order dismissing the suit for non-attendance is set aside.
- The suit is reinstated.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC CASE NO. 565 OF 2011
JOSEPH KAHINDI NYALE & 5 OTHERS......................................APPLICANTS
-VERSUS-
HENRY CLEMENT FARAH & 7 OTHERS............................... RESPONDENTS
RULING
(Application seeking to reinstatement a suit; suit dismissed for non-attendance of the applicants; suit being one for adverse possession; counsel stating that link to the virtual court proceedings were not availed; court in doubt as links are not personal to counsel; court in own discretion allowing the application but subject to throw away costs)
1. The application before me is one dated 1 September 2020, and filed on 2 September 2020. The applicants are seeking orders to set aside the order for dismissal of the main suit issued on 1 September 2020.
2. To put matters into context, the suit was initiated by way of originating summons dated 14 October 2011. The applicants claim to be owners, by way of adverse possession, of Plot Number 55 Section II Mainland North (hereinafter referred to as the ‘suit property’). The applicants contend that despite the 1st -7th respondents being the registered owners of the suit property, the applicants have been in occupation, possession and control of the suit property for more than twenty years. The originating summons was opposed by a replying affidavit sworn by the 6th respondent. He deposed that the 5th and 6th respondents are the joint owners of the suit property, and that the 1st-4th and 7th respondents have long passed away.
3. The matter was fixed for hearing on 1 September 2020, but only Mr. Jumbale, learned counsel for the 6th respondent, attended the virtual court. There was no appearance on the part of Ms. Shariff, learned counsel for the applicants, despite being duly served with the hearing notice. Given the absence of the applicants, the court, Matheka J, dismissed their suit for non-attendance.
4. This application is principally based on the grounds that counsel did not attend virtual court due to lack of the link. She claims that no link was sent to her email or telephone number as is the practice.
5. Virtual court proceedings have been part of court process for almost a year now. I have my doubts as to the allegation that the link was not sent to counsel, for as far as my knowledge goes, the links to attend court are open to the public and there is no specific link that is supposed to be sent to counsel. Nonetheless, so that the applicants are not shut out, I will, in my discretion, allow this application and reinstate the suit. The applicants will however pay throw away costs of Kshs. 10,000/= to the 6th respondent whose counsel was present in court and ready to proceed. The said costs be paid within the next 14 days or else this suit will remain dismissed.
6. Orders accordingly.
DATED AND DELIVERED THIS 11TH DAY OF MARCH, 2021
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT MOMBASA