[2014] KEHC 2454 (KLR)
The court found that although notice to show cause had been properly issued in accordance with Order 17 of the Civil Procedure Rules, the plaintiff had filed an application on 20th February, 2014 seeking consolidation of the suit with two others. In the interest of justice, and considering the pending application,...
Source-derived case information.
- Citation
- [2014] KEHC 2454 (KLR)
- Parties
- Plaintiff: Joseph Murori N'Nkanata (Legal Representative of the Estate of M'Nkanata M'Mwirichia); Defendant: Stanely Gaiti; Defendant: Jelina Kaimuri Nkanja
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 118 of 1985
- Procedural Posture
- Review Application / Ruling on Application to Set Aside Dismissal
- Outcome
- Application allowed; dismissal order set aside.
- Judges
- FM Njoroge
- Legal Topics
- Review of Dismissal Orders, Want of Prosecution, Consolidation of Suits, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Murori N'Nkanata (Legal Representative of the Estate of M'Nkanata M'Mwirichia)
Plaintiff
Stanely Gaiti
Defendant
Jelina Kaimuri Nkanja
Defendant
Procedural Posture
Review Application / Ruling on Application to Set Aside Dismissal
Legal Issues
- 1 Whether the court should review and set aside the dismissal order made on 17th March, 2014.
- 2 Whether the plaintiff's application dated 20th February, 2014 for consolidation of suits was pending at the time of dismissal.
- 3 Whether notice to show cause was properly issued to the parties before dismissal for want of prosecution.
Ratio Decidendi
The court found that although notice to show cause had been properly issued in accordance with Order 17 of the Civil Procedure Rules, the plaintiff had filed an application on 20th February, 2014 seeking consolidation of the suit with two others. In the interest of justice, and considering the pending application, the court exercised its discretion to set aside the dismissal order made on 17th March, 2014. The court emphasized that the overriding objective of the court process is to do justice between the parties, and that the existence of a pending application was a sufficient reason to review and set aside the dismissal.
Court Disposition
Application allowed; dismissal order set aside.
Orders
- The orders of dismissal made on 17th March, 2014 are set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
HCC 118 OF 1985
JOSEPH MURORI N'NKANATA (Legal Representative of the Estate of M'Nkanata M'Mwirichia).......................................................................................PLAINTIFF
VERSUS
STANELY GAITI.........................................................................1ST DEFENDANT
JELINA KAIMURI NKANJA.....................................................2ND DEFENDANT
R U L I N G
This application is dated 24th day of March, 2014 and seeks orders:-
(a) The Hon. Court be pleased to Review and set aside orders of dismissal made on 17th March, 2014.
(b) That the Hon. Court do set down for hearing as a matter of great urgency, an application already filed and dated 20th February, 2014.
It is grounded on the facts set out in the affidavit of Mburugu Kioga, the advocate of the plaintiff and the following other grounds:
(a) This suit is very old and the subject matter thereof has generated a lot of acrimony and animosity between the applicant and other marauding grabbers bent on routing the applicant from her land.
(b) The court failed to notice the application was already in the file and no notice had been issued to the applicant's counsel prior to the dismissal.
(c) That it is also suspicious as to why the matter which came to court on 13. 3.2014 was brought to the judge on 17th March for dismissal
(d) That the overriding objective of the court was not met by this dismissal.
On 15. 7.2014 Mr. Kioga merely repeated the grounds in his affidavit and in the Notice of Motion.
I find as a fact that Notice had been properly issued for parties to show cause on 13. 3.2014 as to why the suit should not be dismissed for want of prosecution accordance with the provisions of order 17 of the Civil Procedure Rules. I, however, agree that the plaintiff had filed an application on 20. 2.2014 seeking to have this suit consolidated with 2 others.
In the interest of justice, I do set aside the orders of dismissal made on 17th March, 2014.
Delivered in Open Court at Meru this 25th day of July, 2014 in the presence of:
Kiogora h/b Kioga for applicant
P. M. NJOROGE
JUDGE