[2019] KEELC 4571 (KLR)
The court found that the applicant provided a reasonable explanation for both the non-attendance on the hearing date and the delay in bringing the application to set aside the dismissal. The applicant's counsel's absence was due to unforeseen mechanical problems with public transport, and the delay in instructing...
Source-derived case information.
- Citation
- [2019] KEELC 4571 (KLR)
- Parties
- Applicant: Josphine Nduta Mwangi; Respondent: E. Mungai Uno
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Muranga
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 354 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Non Attendance
- Outcome
- application allowed with conditions
- Judges
- BC Koech
- Legal Topics
- Setting Aside Dismissal, Reinstatement of Suit, Non Attendance, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphine Nduta Mwangi
Applicant
E. Mungai Uno
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the orders dismissing the suit for non-attendance should be set aside.
- 2 Whether the applicant has provided sufficient reasons for non-attendance and delay in filing the application.
- 3 Whether the respondent would suffer prejudice if the suit is reinstated.
Ratio Decidendi
The court found that the applicant provided a reasonable explanation for both the non-attendance on the hearing date and the delay in bringing the application to set aside the dismissal. The applicant's counsel's absence was due to unforeseen mechanical problems with public transport, and the delay in instructing counsel was attributed to the plaintiff's advanced age. The respondent did not oppose the application, and the court was satisfied that no prejudice would be caused to the respondent if the suit was reinstated. Exercising its discretion under Order 12 rule 7 of the Civil Procedure Rules, the court allowed the application to set aside the dismissal, subject to the applicant fixing...
Court Disposition
application allowed with conditions
Orders
- The dismissal orders of 9/4/18 are set aside and the suit is reinstated for hearing.
- The applicant must fix the matter for hearing within 30 days, failing which the suit shall stand dismissed without further orders.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MURANG’A
ELC NO. 354 OF 2017
JOSPHINE NDUTA MWANGI............APPLICANT
VS
E. MUNGAI UNO.............................RESPONDENT
RULING
1. The Applicant filed the Notice of Motion dated 17/12/18 under Order 12 rule 1 and 7, Order 51 rule 1 of the Civil Procedure Rules, seeking the following orders;
a. That the Court be pleased to set aside its orders of the 9/4/18 which dismissed this case for non-attendance and the Plaintiff /Applicant herein be allowed to proceed with her case until the same is heard and finalized.
2. The application is based on the grounds on the face of it and on the supporting affidavit of Paul K Kamata sworn on the 14/12/18. He stated interalia that he travelled to Court by public means (say Matatu) which developed mechanical problems enroute to Muranga at Makuyu area and arrived at the Court passed 9. 30am when this matter had been called out and the parties being absent, the Court dismissed it for non-attendance.
3. That his non-attendance to Court on the material date was inadvertent and urged the Court to reinstate the matter so that it may be heard on its merits.
4. I have perused the Court record and note that this matter was duly dismissed for nonattendance on the 9/4/18. The instant application was filed on the 17/12/18, some 8 months down the road. The Applicants Counsel Mr Kamata explained this delay in his oral submissions when he argued the application on the 29/1/19 that the Plaintiff is an old lady and it took long for her to visit his chambers for purposes of giving him further instructions.
5. The application has not been opposed by the Respondents and the Court is satisfied that no prejudice will be visited on them if the matter is heard on its merits.
6. Is the application for setting aside the orders of the 9/4/18 merited? The Applicant has given the reasons as to why the delay in bring this application and setting down this matter for hearing and has appealed to the Court to set aside the said dismissal orders so that the matter may be set down for hearing. In exercise of its powers under Order 12 rule 7, this Court exercises discretion and reinstates the suit for hearing under the conditions set out in the next paragraph.
7. The application is allowed subject to Applicant fixing the matter for hearing within the next 30 days failure to which this matter shall stand dismissed thereafter without any further orders of this Court.
8. The Applicant shall meet the costs of the application.
Orders accordingly
DELIVERED, DATED AND SIGNED AT MURANG’A THIS 14TH DAY OF FEBRUARY 2019.
J G KEMEI
JUDGE
Delivered in open Court in the presence of;
Kamata for the Plaintiff/Applicant
Defendant/Respondent – Absent
Irene and Njeri, Court Assistants