[2021] KEELC 1297 (KLR)
The court found that there was no clear evidence that the Notice to Show Cause was served on the Plaintiff or his counsel before the suit was dismissed for want of prosecution. Service of such notice is a mandatory procedural step, and failure to comply with it renders the dismissal order irregular. The Plaintiff...
Source-derived case information.
- Citation
- [2021] KEELC 1297 (KLR)
- Parties
- Applicant: Joseph Ombati Nyamwembe (Suing as administrator of estate of Oigoro Nyamike, deceased); Respondent: Joseph Mogeni Nyangweso
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 28 of 2021
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal Order and Reinstate Suit
- Outcome
- Application allowed; suit reinstated with conditions; no order as to costs.
- Judges
- CM Kamau
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Notice to Show Cause, Court Discretion, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ombati Nyamwembe (Suing as administrator of estate of Oigoro Nyamike, deceased)
Applicant
Joseph Mogeni Nyangweso
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal Order and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution was proper in the absence of evidence that the Notice to Show Cause was served on the Plaintiff.
- 2 Whether the Plaintiff is entitled to reinstatement of the suit after being condemned unheard.
- 3 Whether the Defendant is entitled to costs following the reinstatement of the suit.
Ratio Decidendi
The court found that there was no clear evidence that the Notice to Show Cause was served on the Plaintiff or his counsel before the suit was dismissed for want of prosecution. Service of such notice is a mandatory procedural step, and failure to comply with it renders the dismissal order irregular. The Plaintiff was therefore condemned unheard, violating his right to a fair hearing. The court exercised its discretion to set aside the dismissal and reinstate the suit, but imposed conditions to ensure expeditious hearing. The Defendant was denied costs as he did not assist the court in progressing the matter or in moving for dismissal prior to the court's own motion.
Court Disposition
Application allowed; suit reinstated with conditions; no order as to costs.
Orders
- The suit is reinstated and set down for hearing within the next 10 days from the date hereof.
- There shall be no further adjournment in this case unless the same is inevitable.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYAMIRA
ELC CASE NO. 28 OF 2021
{Formerly at Environment and Land Court at Kisii Case No. 228 of 2015)
JOSEPH OMBATI NYAMWEMBE (Suing as administrator of estate of OIGORO
NYAMIKE(deceased).........................................................PLAINTIFF/APPLICANT
=VERSUS=
JOSEPH MOGENI NYANGWESO.....................DEFENDANT/RESPONDENT
RULING
This is a case of a Plaintiff going to sleep and the Defendant decides to do the same. In his Application dated 24/03/21 the Plaintiff prays for Orders as follows: -
1. Spent.
2. Spent
3. THAT this Honourable court be pleased to set aside the dismissal orders made on 29/01/21 dismissing the Applicant’s suit under Order 17 Rule 2 of the Civil Procedure Rules 2010.
4. THAT the suit be transferred to Nyamira Law Courts for hearing and determination as the said court has pecuniary jurisdiction to hear the matter.
5. Costs of the Application be provided for in any event.
Under Order 17 Rule 2 (1) the court may dismiss a suit where no step has been taken by either party for one year after giving notice to all the parties to the suit and if no cause is not shown to the court’s satisfaction. It is clear from the court record that a NTSC under Order 17 Rule 2 (1) of the Civil Procedure Rules was prepared by the court inviting the parties to appear in court on 29/01/21 and show cause why the suit should not be dismissed for want of prosecution. The same is dated 14/12/20. What is not clear is whether the same was ever served on the parties or not and particularly the Plaintiff. On 29/01/21, Mr. Kaba held brief for Mr. Nyatundo for the 1st Defendant and there was no appearance for the Plaintiff. Mr. Kaba prayed for the suit to be dismissed for want of prosecution. By making this prayer, Mr. Kaba was riding on the back of the court which had commenced the process sui moto. The court did dismiss the suit for want of prosecution with costs to the Defendant.
Thereafter, the Defendant filed his Bill of Costs with a figure Kshs. 94,750/= and it is only when the Plaintiff was served with this Bill dated 10/02/21 that he came to know that the suit had been dismissed. Although in his Affidavit in support of this Application, the Plaintiff says that the Defendant will not suffer any prejudice as a result of the reinstatement of the suit and even runs fast to Article 159 (2) (d) which provides that justice should not be administered without undue regard to technicalities, he fails to recognize that on his way to Article 159 (2) (d) there is another conspicuous Sub-Article (b) which keeps reminding him that justice shall not be delayed. This is a 2015 matter and was 6 years old in court by the time it was dismissed. The Defendant on his part and by way of a Replying Affidavit seems to celebrate the dismissal of the suit which is a natural consequence.
I have also looked at the written Submissions of both parties and even allowed them to highlight what they felt ought to be given more weight by the court. As noted above, it is not clear whether the NTSC dated 14/12/20 ever reached the Plaintiff or his counsel. This was a necessary and in fact a requisite step before the suit was dismissed and I therefore agree with the Plaintiff/Applicant that he was condemned unheard. The court does not agree with the Plaintiff’s Submissions that the failure to prosecute the suit was due to Covid-19 pandemic in the absence of evidence and/or clarification.
Since this court has unfettered discretion in a prayer such as is before the court the same will be exercised in favour of the Plaintiff/Applicant but with the following conditions: -
1. THATthe suit be set down for hearing within the next 10 days from the date hereof.
2. THAT there shall be no further adjournment in this case unless the same is inevitable.
3. THAT Prayer No. 4 of the Applicant date 24/03/21 has not been proved and the suit shall therefore be heard by this court.
Since the Defendant never assisted the court in either taking steps to fix a hearing date for the suit or moving the court to dismiss the same for want of prosecution he is not entitled to thrown away costs. The upshot of the above is that the suit is hereby reinstated with no orders as to costs.
This is the order of the court.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 19TH DAY OF OCTOBER, 2021.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant:
Plaintiff’s Counsel –
Defendants’ Counsel –