[2017] KEELC 970 (KLR)
The court found that although a hearing notice was present in the file, there was no evidence that a notice to show cause was served on the Plaintiffs or their advocate as required by Order 17 Rule 2(1) of the Civil Procedure Rules. The court also noted that the Plaintiffs' advocate had made efforts to fix the...
Source-derived case information.
- Citation
- [2017] KEELC 970 (KLR)
- Parties
- Plaintiff: Julius Monzi Muia; Plaintiff: Eunice Ndinda Monzi; Plaintiff: John Nzioka Muteti; Defendant: Thomas Muthiani Nzioka; Defendant: Olkejuado County Council
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 69 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed; suit reinstated
- Judges
- OA Angote
- Legal Topics
- Dismissal for Non Attendance, Reinstatement of Suit, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Monzi Muia
Plaintiff
Eunice Ndinda Monzi
Plaintiff
John Nzioka Muteti
Plaintiff
Thomas Muthiani Nzioka
Defendant
Olkejuado County Council
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit for non-attendance should be set aside and the suit reinstated.
- 2 Whether the Plaintiffs and their advocates were properly served with a hearing notice for the date the suit was dismissed.
- 3 Whether the court followed the correct procedure under Order 17 Rule 2(1) of the Civil Procedure Rules.
Ratio Decidendi
The court found that although a hearing notice was present in the file, there was no evidence that a notice to show cause was served on the Plaintiffs or their advocate as required by Order 17 Rule 2(1) of the Civil Procedure Rules. The court also noted that the Plaintiffs' advocate had made efforts to fix the matter for hearing previously. Due to the procedural anomaly in serving a hearing notice instead of a notice to show cause, and in the interest of justice, the court exercised its discretion to set aside the dismissal and reinstate the suit for hearing.
Court Disposition
application allowed; suit reinstated
Orders
- The order made on 21st March, 2017 dismissing the Plaintiffs’ suit for non-attendance is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 69 OF 2003
JULIUS MONZI MUIA ..............................................1ST PLAINTIFF
EUNICE NDINDA MONZI .........................................2ND PLAINTIFF
JOHN NZIOKA MUTETI ..........................................3RD PLAINTIFF
VERSUS
THOMAS MUTHIANI NZIOKA ............................1ST DEFENDANT
OLKEJUADO COUNTY COUNCIL .....................2ND DEFENDANT
RULING
1. In the Application dated 28th March, 2017, the Plaintiffs are seeking for the following orders:
a. That the order made on 21st March, 2017 dismissing the Plaintiffs’ suit for non-attendance be set aside and the suit be reinstated for hearing.
b. That costs of this Application be in the cause.
2. The Application is based on the grounds that the Plaintiffs and their advocates were not aware that the suit had been fixed for hearing on the material date and were not served with a hearing notice.
3. According to the Plaintiffs’ advocate, he was not aware that the court had fixed the matter for hearing and that they never received a hearing notice which is in the court file.
4. The record shows that on 21st March, 2017, this matter was dismissed by the court for want of prosecution.
5. I have perused the file and found a “Hearing Notice”by the court for 21st March, 2017.
6. Although the suit was dismissed by the court on 21st March, 2017 pursuant to the provision of Order 17 Rule 2(1) of the Civil Procedure Rules, it would appear that what was served on the Plaintiffs’ advocate by the court was “a Hearing Notice”and not “a Notice to Show Cause” why the suit should not be dismissed for want of prosecution.
7. Due to that anomaly, and considering that the Plaintiffs’ advocate had actually attempted to fix the matter for hearing vide his letter dated 14th July, 2016, without success, I shall grant to the Plaintiff an opportunity to prosecute his claim.
8. For those reasons, I allow the Application dated 28th March, 2017 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 9TH DAY OF NOVEMBER, 2017.
O. A. ANGOTE
JUDGE