[2017] KEELC 1259 (KLR)
The court found that the Plaintiff received the notice to show cause on the same day the suit was dismissed for want of prosecution, making it impossible for its counsel to attend court. There was no evidence of fault on the part of the Plaintiff. The court was satisfied that the Plaintiff had demonstrated...
Source-derived case information.
- Citation
- [2017] KEELC 1259 (KLR)
- Parties
- Plaintiff: Kenya Anti-Corruption Commission; Defendant: Wilson Gacanja; Defendant: S.K. Mwata; Defendant: Reuben Musengi Mwange; Defendant: Francis Mwanzia Nathan
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 34 of 2008
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal Order
- Outcome
- application allowed; suit reinstated
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Anti-Corruption Commission
Plaintiff
Wilson Gacanja
Defendant
S.K. Mwata
Defendant
Reuben Musengi Mwange
Defendant
Francis Mwanzia Nathan
Defendant
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the Plaintiff received sufficient notice to attend court before the suit was dismissed for want of prosecution.
- 2 Whether the order dismissing the suit should be set aside and the suit reinstated.
Ratio Decidendi
The court found that the Plaintiff received the notice to show cause on the same day the suit was dismissed for want of prosecution, making it impossible for its counsel to attend court. There was no evidence of fault on the part of the Plaintiff. The court was satisfied that the Plaintiff had demonstrated sufficient cause for non-attendance and that the interests of justice required the suit to be reinstated. Accordingly, the application to set aside the dismissal order was allowed.
Court Disposition
application allowed; suit reinstated
Orders
- The Plaintiff's Application dated 5th April, 2017 is allowed.
- The order of 27th March, 2017 dismissing the suit is set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 34 OF 2008
KENYA ANTI-CORRUPTION COMMISSION ...........PLAINTIFF
VERSUS
WILSON GACANJA ........................................1ST DEFENDANT
S.K. MWATA......................................................2ND DEFENDANT
REUBEN MUSENGI MWANGE .......................3RD DEFENDANT
FRANCIS MWANZIA NATHAN .......................4TH DEFENDANT
RULING
1. The Plaintiff has filed an Application dated 5th April, 2017 in which he is seeking the setting aside of the order of 27th March, 2017 dismissing the suit.
2. The Application is based on the grounds that the Applicant’s lawyer received the notice of dismissal on 27th March, 2017; that the notice was sent to its headquarters and that the delay in prosecuting the suit was occasioned by Machakos Judicial Review Application Number 130 of 2011.
3. The Applicant’s advocate has deponed that the order of dismissal was made without any fault on the part of the Applicant and that the suit should be reinstated.
4. In response, the 1st Defendant filed Grounds of Opposition and averred that the Plaintiff has never been interested in prosecuting the suit; that the 1st Defendant ceased to be the Commissioner of Lands in the year 1999 and that the Plaintiff has not met the threshold set out under Order 12 Rule 7 of the Civil Procedure Rules.
5. The Plaintiff’s and the 1st Defendant’s advocate filed their respective authorities which I have considered.
6. The Plaintiff has admitted that it received the Notice to show cause why the suit should not be dismissed.
7. The Plaintiff has annexed on its Supporting Affidavit the copy of the notice. On the face of the said notice, it is shown that the notice was received in the Plaintiff’s office on 27th March, 2017 at 11. 03a.m, which was the same day that this court dismissed the suit for want of prosecution.
8. Having read the Affidavit of the Plaintiff’s advocate and having perused the copy of the Notice that has been annexed on the Plaintiff’s Supporting Affidavit, I have no reason to dispute the Plaintiff’s assertion that it received the Notice to show cause why the suit should not be dismissed for want of prosecution on the same day the matter came up for dismissal. The Plaintiff’s counsel could not have therefore been in a position to attend court on the said day.
9. In the circumstances, and for the reasons I have given above, I allow the Plaintiff’s Application dated 5th April, 2017.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF NOVEMBER, 2017.
O.A. ANGOTE
JUDGE