[2018] KEELC 1152 (KLR)
The court found that the applicant's reasons for non-attendance were not credible or sufficient, especially given the history of the case, which had been pending since 2010 and had already been granted a final adjournment in February 2018. The court held that the delay was inexcusable and amounted to an abuse of the...
Source-derived case information.
- Citation
- [2018] KEELC 1152 (KLR)
- Parties
- Applicant: Jotham Aggrey Angoko Mukhobi; Respondent: James Ayilo Mukhobi; Respondent: Harrison Jairo Mukhobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 183 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Suit
- Outcome
- application dismissed
- Judges
- NA Matheka
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Delay in Prosecution, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jotham Aggrey Angoko Mukhobi
Applicant
James Ayilo Mukhobi
Respondent
Harrison Jairo Mukhobi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance.
- 2 Whether the reasons for the applicant's failure to attend court are sufficient to warrant reinstatement.
- 3 Whether the delay in prosecuting the suit is excusable.
Ratio Decidendi
The court found that the applicant's reasons for non-attendance were not credible or sufficient, especially given the history of the case, which had been pending since 2010 and had already been granted a final adjournment in February 2018. The court held that the delay was inexcusable and amounted to an abuse of the court process. Applying the principles from Utalii Transport Company Ltd & 3 Others v NIC Bank & Another and Ivita v Kyumbu, the court concluded that the interests of justice did not warrant reinstatement of the suit, and the application was therefore dismissed with costs to the respondents.
Court Disposition
application dismissed
Orders
- The application for reinstatement of the suit is dismissed.
- Costs of the application are awarded to the defendants/respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 183 OF 2014
JOTHAM AGGREY ANGOKO MUKHOBI...................PLAINTIFF/APPLICANT
VERSUS
JAMES AYILO MUKHOBI
HARRISON JAIRO MUKHOBI...........................DEFENDANTS/RESPONDENTS
RULING
This application is dated 26thJuly, 2018 and seeks the following orders:-
(a) That this suit be reinstated.
(b) That the cost of this application be provided for.
It is based on the annexed affidavit of George Ngala Awino and in the following grounds that failure to prosecute the suit was occasioned by late arrival of the applicant’s counsel in court.That the applicant’s advocate and his client failure arrive late in court was as a result of delayed transport on the way to Kakamega from Kisumu.That the delay was unforeseen and unexpected.That no prejudice shall be occasioned to the respondent if this application is allowed.The applicant submitted that, on the 24th July, 2018, this matter was called out and dismissed for non attendance.That while he was travelling to Kakamega law Court to attend to the matter, the vehicle in which he was travelling in delayed at Chavakali shopping Centre and therefore caused him to arrive 30 minutes late, only to find the suit dismissed.That the plaintiff also arrived some few minutes late due to challenges on the road.That both the plaintiff and his counsel will strive to keep time in future and both are very apologetic over what happened.
The respondent submitted that there is no evidence that the applicant ever attended court on the material date. They have been reluctant to prosecute the matter and the application should be dismissed.
This court has considered the application and the submissions therein. The applicant submitted that, failure to prosecute the suit was occasioned by late arrival of the applicant’s counsel in court. That the applicant’s advocate and his client failure arrive late in court was as a result of delayed transport on the way to Kakamega from Kisumu. That the delay was unforeseen and unexpected. I have perused the court file and find that this case was filed way back in 2010! On the 20th February 2018 the plaintiff was given the final ajournment. This matter is an abuse of the court process. And I do not accept the applicant’s reasons for non attendance.
In the case of Utalii Transport Company Ltd & 3 Others v NIC Bank & Another (2014) eKLR, the court held that it is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court. The decision on whether the suit should be reinstated for trial is a matter of justice and it depends on the facts of the case. In Ivita v Kyumbu (1984) KLR 441,Chesoni J as he then was, stated that the test is whether the delay is prolonged and inexcusable and if justice will be done despite the delay. Justice is justice for both the plaintiff and the defendant. I find this application is not merited and I dismiss it. Cost of this application to the defendants/respondents.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 9TH DAY OF OCTOBER 2018.
N.A. MATHEKA
JUDGE