[2019] KEELC 4169 (KLR)
The court found that the primary reason for dismissal of the suit was the applicant's failure to serve the judicial review motion on the respondent and interested party as required by Order 53 of the Civil Procedure Rules. No sufficient explanation was provided for this omission. However, the court exercised...
Source-derived case information.
- Citation
- [2019] KEELC 4169 (KLR)
- Parties
- Applicant: Justus Kanake M’Mukindia; Respondent: Land Adjudication and Settlement Officer Tigania East; Respondent: Silas Mutungi Kareng’e
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 19 of 2016
- Procedural Posture
- Judicial Review Application / Ruling on Application for Reinstatement of Suit
- Outcome
- Conditional reinstatement of suit granted.
- Legal Topics
- Reinstatement of Suit, Service of Process, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Kanake M’Mukindia
Applicant
Land Adjudication and Settlement Officer Tigania East
Respondent
Silas Mutungi Kareng’e
Respondent
Procedural Posture
Judicial Review Application / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-service of the judicial review motion.
- 2 Whether failure to serve the substantive motion on the respondent and interested party was justified.
- 3 Whether minor errors in dates and references affect the merits of the application for reinstatement.
Ratio Decidendi
The court found that the primary reason for dismissal of the suit was the applicant's failure to serve the judicial review motion on the respondent and interested party as required by Order 53 of the Civil Procedure Rules. No sufficient explanation was provided for this omission. However, the court exercised discretion to grant the applicant a final opportunity to prosecute the suit, conditional upon serving the main judicial review motion, statement of facts, and chamber summons for leave within seven days from the date of the ruling. Failure to comply would result in automatic dismissal of the suit.
Court Disposition
Conditional reinstatement of suit granted.
Orders
- The applicant shall serve the main judicial review motion, statement of facts, and chamber summons for leave upon the respondent and interested party within 7 days from the date of this ruling.
- Failure to serve within 7 days will result in the suit standing as dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
JR 19/2016
JUSTUS KANAKE M’MUKINDIA...........................................PLAINTIFF
VERSUS
LAND ADJUDICATION AND SETTLEMENT
OFFICER TIGANIA EAST......................................................DEFENDANT
SILAS MUTUNGI KARENGE........................................2ND DEFENDANT
RULING
1. This suit was dismissed on 22. 2.2018 and the application dated 30. 4.2018 is for reinstatement of the same. Applicant contends that the Judicial Review Motion which was dismissed was dated 23. 7.2016, yet his JR motion is dated 25. 7.2016, that he was not served with the mention date of 8. 2.2018 and that on the date of dismissal, matter was coming up for mention only.
2. I have perused the entire record. I find that the Judicial Review motion was dismissed primarily because it has never been served upon the interested party and respondent. Order 53 of the Civil Procedure Rules requires that the motion be served.
3. No plausible reason have been advanced as to why the exparte applicant was not effecting service of the suit papers (read substantive motion) to the other parties. As regards the reference to motion of 23. 7.2016 instead of 25. 7.2016, that is but a minor error just like the applicant is making reference to a dismissal order dated 8. 2.2018 yet the dismissal was on 22. 8.2018.
4. Despite the foregoing, I am inclined to give the exparte applicant a last chance to prosecute the suit on condition that the main JR motion, along with the statement of facts and the chamber summons for leave are served upon the respondent and interested party within 7 days from the date of delivery of this ruling failure to which the suit shall stand as dismissed.
5. No orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 20TH MARCH, 2019
IN THE PRESENCE OF:-
C/A: Kananu
Kungu for respondent
Maheri for interested party
HON. LUCY. N. MBUGUA
ELC JUDGE