[2022] KEELC 2446 (KLR)
The court found that the applicant failed to provide any evidence of service of the application on the respondents as previously ordered, nor did the applicant or his counsel attend court on the scheduled dates. The alleged mistake of counsel was not substantiated, as the counsel was not identified, nor was an...
Source-derived case information.
- Citation
- [2022] KEELC 2446 (KLR)
- Parties
- Appellant: George N. Karani; Respondent: Yetu Sacco; Respondent: Genson Mburia Thambu; Respondent: Viewline Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 126 of 2021
- Procedural Posture
- Environment and Land Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application dismissed with costs
- Judges
- CK Nzili
- Legal Topics
- Reinstatement of Application, Dismissal for Want of Prosecution, Service of Process, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George N. Karani
Appellant
Yetu Sacco
Respondent
Genson Mburia Thambu
Respondent
Viewline Auctioneers
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the application to set aside the dismissal for want of prosecution should be allowed and the application reinstated for hearing on merits.
- 2 Whether the applicant has provided sufficient explanation for non-attendance and failure to serve the application as ordered by the court.
Ratio Decidendi
The court found that the applicant failed to provide any evidence of service of the application on the respondents as previously ordered, nor did the applicant or his counsel attend court on the scheduled dates. The alleged mistake of counsel was not substantiated, as the counsel was not identified, nor was an affidavit provided explaining the absence or showing engagement elsewhere. The court held that the applicant had not demonstrated sufficient cause for the non-attendance or failure to serve, and that the pattern of non-compliance with court orders could not be excused. Consequently, the application to set aside the dismissal and reinstate the earlier application lacked merit and was...
Court Disposition
application dismissed with costs
Orders
- The application dated 8.2.2022 is dismissed with costs.
- The Deputy Registrar is directed to call for the lower court file for further directions.
Full Case Text
Judgment text and source record
25 paragraphs
Karani v Yetu Sacco & 2 others (Environment and Land Appeal 126 of 2021) [2022] KEELC 2446 (KLR) (20 July 2022) (Ruling)
Neutral citation: [2022] KEELC 2446 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Appeal 126 of 2021
C K Nzili, J
July 20, 2022
Between
George N. Karani
Appellant
and
Yetu Sacco
1st Respondent
Genson Mburia Thambu
2nd Respondent
Viewline Auctioneers
3rd Respondent
Ruling
1. What is before the court is an application dated February 8, 2022 seeking for setting aside the orders made on January 25, 2022 dismissing the application dated December 15, 2021 for want of prosecution and for the reinstatement of the same for hearing on merits.
2. The grounds in support as contained in the supporting affidavit sworn on 8. 2.2022 by George Karani are that counsel handling the matter was held up before another court and by the time he logged in, the application had already been dismissed for want of prosecution. That there was inadvertent mistake of counsel; it is in the interest of justice the application be reinstated for there will be no prejudice to the respondent; mistake of counsel should not be visited upon the party and lastly if the application is not allowed the applicant shall suffer irreparable loss and damage.
3. The application was certified urgent on February 23, 2022 and an order made for the same to be served for inter-partes on 15. 3.2022. When matter came up for inter-partes hearing but the applicant failed to attend. Similarly, there was no prove of service upon the respondent as ordered by the court.
4. Additionally, the court certified the application dated December 15, 2021 urgent and directed it be served for interpartes hearing on January 25, 2022.
5. There was neither service of the application nor appearance on the said date. In the present application, there is no mention if the application was ever served for the applicant to aver there would be no prejudice to the respondents if the orders sought are granted. It cannot be a coincidence that the applicant in a row is not attending court and or complying with its orders on service. The counsel who failed to attend court has not been mentioned nor has he or she sworn an affidavit explaining when he or she logged in and or attaching a cause list for the matter engaged in at the High Court. The alleged mistake of counsel has not been owned up at all.
6. In absence of the foregoing I see no merits in the application dated 8. 2.2022. The same is dismissed with costs. The Deputy Registrar is directed to call for the lower court file for further directions.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 20TH DAY OF JULY, 2022In presence of:No appearanceHON. C.K. NZILIELC JUDGE