[2020] KEELC 2124 (KLR)
The court found that the applicant failed to provide a plausible or sufficient explanation for the non-attendance that led to the dismissal of the Preliminary Objection. Furthermore, the application for reinstatement was filed almost one and a half years after the dismissal order, which the court deemed as...
Source-derived case information.
- Citation
- [2020] KEELC 2124 (KLR)
- Parties
- Plaintiff: Joseph Malit Maeku & 60 Others; Defendant: Nkurunah Ole Masikonde & 7 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 44 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Preliminary Objection
- Outcome
- application dismissed
- Judges
- MN Kullow
- Legal Topics
- Reinstatement of Dismissed Applications, Preliminary Objection, Court Discretion, Inordinate Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Malit Maeku & 60 Others
Plaintiff
Nkurunah Ole Masikonde & 7 Others
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Preliminary Objection
Legal Issues
- 1 Whether the court should exercise its discretion to reinstate a dismissed Preliminary Objection.
- 2 Whether the applicant has provided sufficient explanation for non-attendance leading to dismissal.
- 3 Whether the delay in filing the application for reinstatement is inordinate and prejudicial.
Ratio Decidendi
The court found that the applicant failed to provide a plausible or sufficient explanation for the non-attendance that led to the dismissal of the Preliminary Objection. Furthermore, the application for reinstatement was filed almost one and a half years after the dismissal order, which the court deemed as inordinate delay. The court held that allowing the application would further delay the hearing of the substantive suit, which had already been pending since 2011 with numerous interlocutory applications. In the absence of a convincing justification for both the non-attendance and the delay, the court declined to exercise its discretion in favour of the applicant and dismissed the...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 10th October, 2019 is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LANDS COURT AT NAROK
ELC CAUSE NO. 44 OF 2017
JOSEPH MALIT MAEKU & 60 OTHERS.................................PLAINTIFFS
-VERSUS-
NKURUNAH OLE MASIKONDE & 7 OTHERS...................DEFENDANTS
RULING
The Defendant/Applicant had by a Notice of Motion dated 10th October, 2019 sought for orders to set aside the dismissal of a Preliminary Objection on point of law dated 10th January, 2019 and that the said Notice of Preliminary Objection be reinstated. The Application was based on the grounds that the said Preliminary Objection was dismissed without notice and that the same raises point of law that goes to the root of the case, and further that it shall serve the interest of justice to reinstate the same and the respondent will not be prejudiced if the same is reinstated.
The Application was further supported by the affidavit of Mr. Ojwang Agina counsel for the applicant in which he deponed that the dismissal of the notice of Preliminary Objection was as a result of non-attendance of both parties. However, the applicant is desirous to prosecute the same and hence urged the court to exercise its discretion.
The Application was opposed by the respondent/plaintiff by way of grounds of opposition and a replying affidavit. The respondent contends that the application is incompetent and that the same does not warrant the grant of orders sought. The respondent further contends that the applicant has not diligently explained the reasons for non-attendance warranting the dismissal of the said Preliminary Objection.
I have considered the application and the grounds of opposition to the same and the replying affidavit.
The applicants in their submissions have contended that it was mistake on their part not to have been present on the date when the Preliminary Objection was dismissed for non-attendance by their advocate which they highly regret and that the mistake should not be visited upon them as they have been ready and willing to prosecute the dismissed Notice of Preliminary Objection and the substantive suit.
This is that sought of application in which the discretion of the court is sought by a party. I have taken cognizance of the fact that the applicant and his advocates were not present on the date the said Preliminary Objection was heard from the affidavit the advocate has not explained what had caused their inability to attend court save for the fact that they said it was just a mistake, the order for dismissal was made way back on 4th April, 2018 and the instant application was made on 10th October, 2019 almost one year and half since the order of dismissal was made and I find this as inordinate delay on the part of the applicant to have the reinstatement of the dismissed Preliminary Objection and furthermore the court had directed that the suit herein be set down for hearing.
In view of the above and the lack of any plausible explanation by the applicant to justify the reinstatement of the Preliminary Objection I find that the application lacks merit and since this is a matter that has been in court since 2011 where countless applications were filed by the parties. I find that allowing the application will further delay the hearing of the substantive suit and I accordingly dismiss theNotice of Motion dated 10th October, 2019.
DATED, SIGNED and DELIVERED IN OPEN COURT at NAROK on this 11th day of JUNE, 2020.
Mohammed Kullow
Judge
11/6/2020
In the presence of:
CA:Chuma
Ms Karia holding brief for Agina for the Defendants/Applicants
Mr Tanyasis holding brief for Osoro for the Plaintiff/Respondents
Mohammed Kullow
Judge
11/6/2020