[2018] KEELC 3546 (KLR)
The court found that the Plaintiff's advocate failed to provide convincing reasons for non-attendance on 27th March, 2017, as no particulars of the matter in Makueni High Court were given and no affidavit to show cause was filed. The suit had not been fixed for hearing since 2009, indicating a lack of diligence. In...
Source-derived case information.
- Citation
- [2018] KEELC 3546 (KLR)
- Parties
- Plaintiff: Joshua Muthiani Nzive; Defendant: Nicholas Mulwa Mbuvi; Defendant: Boniface Makumi Ndambuki; Defendant: Elizabeth Kavele Mutua; Defendant: Wambua Kavete
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 314 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed; suit remains dismissed for want of prosecution
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Non Attendance, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Muthiani Nzive
Plaintiff
Nicholas Mulwa Mbuvi
Defendant
Boniface Makumi Ndambuki
Defendant
Elizabeth Kavele Mutua
Defendant
Wambua Kavete
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the Plaintiff has provided sufficient cause to set aside the dismissal of the suit for want of prosecution.
- 2 Whether the Plaintiff's failure to attend court on 27th March, 2017 was deliberate or excusable.
Ratio Decidendi
The court found that the Plaintiff's advocate failed to provide convincing reasons for non-attendance on 27th March, 2017, as no particulars of the matter in Makueni High Court were given and no affidavit to show cause was filed. The suit had not been fixed for hearing since 2009, indicating a lack of diligence. In the absence of sufficient cause, the court declined to set aside the dismissal for want of prosecution and dismissed the application.
Court Disposition
application dismissed; suit remains dismissed for want of prosecution
Orders
- The Application dated 5th April, 2017 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO.314 OF 2009
JOSHUA MUTHIANI NZIVE.............................PLAINTIFF
VERSUS
NICHOLAS MULWA MBUVI...................1ST DEFENDANT
BONIFACE MAKUMI NDAMBUKI........2ND DEFENDANT
ELIZABETH KAVELE MUTUA..............3RD DEFENDANT
WAMBUA KAVETE...................................4TH DEFENDANT
RULING
1. In the Application dated 5th April, 2017, the Plaintiff is seeking for an order setting aside the orders of the court of 27th March, 2017. The Application is supported by the Affidavit of the Plaintiff’s advocate who deponed that when they attempted to fix the matter for hearing, they were told that the file was to be transferred to Makueni; that the Plaintiff is willing and interested to have the case heard and determined and that her failure to attend court was not deliberate because she was held up in Makueni High Court on the day the matter came up for hearing.
2. The Application was not opposed by the Defendants.
3. The record shows that the matter came up for the Notice to Show Cause why the same should not be dismissed for want of prosecution on 27th March, 2017. On that day, neither the Plaintiff nor his advocates were in court. The matter was therefore dismissed for want of prosecution.
4. Although the Plaintiff’s advocate has deponed that she was in Makueni High Court on the said date, and that she sent her court clerk to look for an advocate to hold her brief, she has not given the particulars of the matter that she was appearing in Makueni High Court.
5. In any event, no Affidavit was filed by the Plaintiff to show cause as to why the matter should not be dismissed. Considering that this suit has never been fixed for hearing since it was filed in the year 2009, and in the absence of convincing reasons by the Plaintiff’s advocate that her failure to attend court on 27th March, 2017 was not deliberate, I decline to allow the Application dated 5th April, 2017.
6. Consequently, I dismiss the Application dated 5th April, 2017 with no order as to costs. For avoidance of doubt, the suit stands dismissed as ordered by the court on 27th March, 2017.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 20TH DAY OF APRIL, 2018.
O.A. ANGOTE
JUDGE