[2019] KEELC 2034 (KLR)
The court found that it had jurisdiction to entertain the application to set aside the dismissal order under Order 12 Rule 7 of the Civil Procedure Rules. The court determined that the applicant had shown sufficient cause for his non-attendance, attributing the failure to prosecute to his previous advocate's...
Source-derived case information.
- Citation
- [2019] KEELC 2034 (KLR)
- Parties
- Plaintiff: Kereto Ole Nteresian; Defendant: District Land Registrar Narok; Defendant: The Attorney General; Defendant: Director of Land Adjudication and Settlement; Defendant: James Ndegu Kusero
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- ? 111 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order and Reinstate Suit
- Outcome
- application allowed; dismissal order set aside; suit reinstated; costs awarded to respondent
- Judges
- MN Kullow
- Legal Topics
- Setting Aside Dismissal, Reinstatement of Suit, Jurisdiction of Court, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kereto Ole Nteresian
Plaintiff
District Land Registrar Narok
Defendant
The Attorney General
Defendant
Director of Land Adjudication and Settlement
Defendant
James Ndegu Kusero
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order and Reinstate Suit
Legal Issues
- 1 Whether the court has jurisdiction to entertain an application to set aside a dismissal order under Order 12 Rule 7 and Section 75 of the Civil Procedure Act.
- 2 Whether sufficient cause was shown to warrant setting aside the dismissal order and reinstating the application.
- 3 Whether the negligence of the applicant's previous advocate is a valid ground for reinstatement.
Ratio Decidendi
The court found that it had jurisdiction to entertain the application to set aside the dismissal order under Order 12 Rule 7 of the Civil Procedure Rules. The court determined that the applicant had shown sufficient cause for his non-attendance, attributing the failure to prosecute to his previous advocate's negligence. The court held that it would serve the interests of justice to allow the applicant to reinstate his case, as denying the application would result in the applicant losing his land without a hearing. The court therefore allowed the application, set aside the dismissal order, and ordered the applicant to pay throw away costs to the respondent.
Court Disposition
application allowed; dismissal order set aside; suit reinstated; costs awarded to respondent
Orders
- The Notice of Motion dated 5th February, 2019 is allowed.
- The orders of 3rd December, 2018 dismissing the Notice of Motion are set aside.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT NAROK
ELC SUIT NO. 111 OF 2017
FORMERLY NAKURU ELC NO. 9 OF 2015
KERETO OLE NTERESIAN.....................................PLAINTIFF
-VERSUS-
DISTRICT LAND REGISTRAR NAROK........1ST DEFENDANT
THE ATTORNEY GENERAL...........................2ND DEFENDANT
DIRECTOR OF LAND ADJUDICATION
AND SETTLEMENT...........................................3RD DEFENDANT
JAMES NDEGU KUSERO.................................4TH DEFENDANT
RULING
By an Application dated 5th February, 2019 and brought under Order 12 Rule 7 of the Civil Procedure Rules and under Section 3A of the Civil Procedure Act the Applicant sought for orders that pending the hearing and determination of the suit there be a stay of order of dismissal dated 3rd December, 2018 and that there also be an order to set aside the order of 3rd December, 2018 dismissing the Application dated 15th December, 2018. The Application was based on the grounds that the Applicant/Defendant case was closed before he could ventilate it. That the Defendant’s/Applicant’s previous Advocates were to blame and he has since hired a new advocate and that if the Application dated 15th December, 2018 is not reinstated he will lose a parcel of land to which he holds title to.
The Application was also supported by the Affidavit of the Applicant in support of the grounds aforesaid.
The Applicant contends that he had applied to the court vide a Notice of Motion dated 15th November, 2018 when the court closed his case and that he was shocked when he learnt that the Application was dismissed for want of attendance and prosecution of the said Applicant.
The Applicant further averred that the failure not to prosecute the Application was that of his advocate and hence he should not be penalized for the same.
The Applicant contends that on the event that the aforesaid Application is not heard he will lose his land and it will serve in the interest of justice to be allowed to prosecute.
The Application was opposed by the Plaintiff by way of grounds of opposition and contend that the Application was prejudicial to the Plaintiff as this is an old matter and that the instant Application was brought after a long delay after he was given another chance by the court. The Plaintiff contends that he can’t be made to suffer because of the negligence of the Defendant’s counsel and no evidence was shown of action he took against the said advocate.
The plaintiff further faults the Application on the grounds that it is requesting the court to sit on its own Appeal.
The Application was heard and disposed off by way of written submissions. The 4th Defendant/Applicant contends that the dismissal of his Application was occasioned by the failure of his advocate to attend court. The Plaintiff/Respondent contend that rather than file the instant application recourse to the Applicant was only by way of Appeal and therefore the court lacks jurisdiction. The Respondent in support of this relied on the provision of order 12 Rule 7 and Section 75 of the Civil Procedure Act.
The Respondent also contended that the Applicant must show sufficient cause to the court for his inability to attend court and for the above reasons he feels that the Applicant has not satisfied the court on why the Application should be allowed.
I have carefully considered the Application before me and the submissions filed by the counsel. The Respondent by the dint of the provisions of Order 12 (7) and Section 75 of the Civil Procedure Act contends that the court lacks jurisdiction to entertain the instant application and since Jurisdiction is what grants the court powers to entertain any application, I wish to dispose this point before addressing the other issues raised in the Application. From the record of the statute the court has jurisdiction to hear the determine the instant suit.
In view of the above I find that it shall serve the interest of justice to accord the Defendants the chance to be able to reinstate their case and I will allow the Notice of Motion dated 5th February, 2018 and I thus set aside the orders of 3rd December, 2018 dismissing the Notice of Motion.
The Applicant in the matter do pay the Respondents throw away costs of kshs. 50,000/-.
DATED, SIGNED and DELIVERED in open court at NAROK on this 30th day of July, 2019
Mohammed Kullow
Judge
30/7/19
In the presence of: -
Mr Kinyanjui for the Respondent
N/A for the Applicant
CA:Chuma/Kimiriny