[2015] KEELC 271 (KLR)
The court held that the consent order of 19th March 2014 required the suit to be set down for hearing within 30 days, meaning the hearing date itself had to fall within that period. The plaintiff's act of attending the registry within 30 days but fixing the hearing for a date outside the 30-day window did not...
Source-derived case information.
- Citation
- [2015] KEELC 271 (KLR)
- Parties
- Plaintiff: Joseph Kasena Yeri; Defendant: Acre One Ltd Company; Defendant: Mambrui Sea Denus Limited; Defendant: Mansour Naji Said; Defendant: National Land Commission; Defendant: Land Registrar, Mombasa; Defendant: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 16 of 2012
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Consent Orders, Reinstatement of Suit, Fixing Hearing Dates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kasena Yeri
Plaintiff
Acre One Ltd Company
Defendant
Mambrui Sea Denus Limited
Defendant
Mansour Naji Said
Defendant
National Land Commission
Defendant
Land Registrar, Mombasa
Defendant
Hon. Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the suit was set down for hearing within 30 days as required by the consent order of 19th March 2014.
- 2 Whether the dismissal for want of prosecution should be set aside and the suit reinstated.
Ratio Decidendi
The court held that the consent order of 19th March 2014 required the suit to be set down for hearing within 30 days, meaning the hearing date itself had to fall within that period. The plaintiff's act of attending the registry within 30 days but fixing the hearing for a date outside the 30-day window did not satisfy the order. The plaintiff did not seek an extension or variation of the order. As the parties were bound by their consent, and the plaintiff failed to comply with its terms, the application to set aside the dismissal and reinstate the suit was dismissed. The court emphasized that compliance with consent orders is mandatory unless formally varied or extended by the court.
Court Disposition
application dismissed
Orders
- The application dated 22nd April 2015 is dismissed with costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.16 OF 2012
(formally Mombasa HCCC 639/11)
JOSEPH KASENA YERI................................................PLAINTIFF
=VERSUS=
1. ACRE ONE LTD COMPANY
2. MAMBRUI SEA DENUS LIMITED
3. MANSOUR NAJI SAID
4. NATIONAL LAND COMMISSION
5. LAND REGISTRAR, MOMBASA
6. HON. ATTORNEY GENERAL..................................DEFENDANTS
R U L I N G
Introduction
1. On 19th March 2014, this court, with the consent of the parties, made the following order:
“ The Plaintiff do set the suit down for hearing in the next 30 days failing which the suit shall stand dismissed for want of prosecution.”
2. The above consent order was precipitated by the Defendants' Application to have the suit dismissed for want of prosecution.
3. The Plaintiff has now filed an Application dated 22nd April 2015 in which he is seeking for the following orders:-
(a) The Hon. Court be pleased to set aside and/or vary orders issued on 14th April 2015 dismissing the suit herein.
(b) The Hon. Court be pleased to reinstate the suit herein and direct the same to proceed for hearing and be determined on merit.
(c) The costs of this Application to be provided for.
4. The Application is premised on the ground that the suit has been fixed for hearing on several occasions after the consent order of 19th March 2014.
5. In opposing the Application, the Defendants averred in their Grounds of Opposition that notwithstanding the events after the 19th March, 2014, the consent order of 19th March 2014 remained in full force and effect and was never varied, renewed and/or discharged.
6. In his submissions, the Plaintiff's advocate submitted that the suit was set down for hearing within 30 days as per the consent order of 19th March 2014; that the Plaintiff's representative was in the registry on 27th March 2014 and took an ex parte hearing date of 18th June 2014 and that the Defendants' Advocate was served with a hearing notice.
7. On his part, the Defendant's counsel submitted that the Plaintiff was required to set the suit down for hearing within 30 days from the 19th March 2014 and that the matter was never fixed for hearing within 30 days.
8. The only issue for determination before me is whether this suit was set down for hearing within 30 days or not pursuant to the consent order of 19th March 2014.
9. The Plaintiff has admitted that after the order of 19th March 2014, his representative went to the registry on 27th March 2014 to fix the matter for hearing. On that day, the record shows that the matter was fixed for hearing on 18th June 2014.
10. It is therefore obvious that the matter was not fixed for hearing on 27th March, 2014 but 18th June 2014.
11. Setting a matter down for hearing “within 30 days from the 19th March 2014” meant that the matter was to come up for hearing on or before 19th April 2014 and not attending the registry and fixing the matter for hearing on a date convenient to parties.
12. It does not matter if the suit would have proceeded on the said date or not. What matters is that the suit should have been fixed for hearing on or before 19th April 2014.
13. If the Plaintiff's representative was unable to get a hearing date within the 30 days, then the Plaintiff should have filed an Application seeking for extension of time or variation of the order of 19th March 2014. He did not do so but instead fixed the matter for hearing outside the period ordered by the court.
14. Having consented that this suit should stand dismissed unless it is set down for hearing within 30 days, the Plaintiff cannot claim that he has not been granted an opportunity to be heard. It is trite law that a consent, just like an agreement, binds the parties.
15. For those reasons, I dismiss the Application dated 22nd April 2015 with costs.
Dated and delivered in Malindi this 11thday of September2015.
O. A. Angote
Judge