[2023] KEELC 21044 (KLR)
The court found that while the record did not explicitly show that the plaintiffs' counsel's call dropped, the explanation provided was not seriously disputed by the respondents. The court acknowledged that technical difficulties, such as dropped calls during virtual proceedings, do occur and that the application to...
Source-derived case information.
- Citation
- [2023] KEELC 21044 (KLR)
- Parties
- Plaintiff: Kangor Yatich Kipkorir; Plaintiff: Lengong Kipyator; Plaintiff: G3 Self-Help Group; Defendant: Walter Tanui; Defendant: Wesley Kiptanui; Defendant: Tom Kiptanui; Defendant: Kenneth Kiptanui; Defendant: Kevin Kiptanui; Defendant: Edward Cherutich Kiptanui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Land Case E047 of 2022
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Dismissal for Non Attendance
- Outcome
- Application to set aside dismissal allowed; suit reinstated.
- Judges
- FM Njoroge
- Legal Topics
- Setting Aside Dismissal, Non Attendance, Virtual Hearings, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kangor Yatich Kipkorir
Plaintiff
Lengong Kipyator
Plaintiff
G3 Self-Help Group
Plaintiff
Walter Tanui
Defendant
Wesley Kiptanui
Defendant
Tom Kiptanui
Defendant
Kenneth Kiptanui
Defendant
Kevin Kiptanui
Defendant
Edward Cherutich Kiptanui
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the plaintiffs' suit should be reinstated after dismissal for non-attendance due to counsel's alleged technical difficulties.
- 2 Whether the explanation for non-attendance constitutes sufficient cause to set aside the dismissal order.
Ratio Decidendi
The court found that while the record did not explicitly show that the plaintiffs' counsel's call dropped, the explanation provided was not seriously disputed by the respondents. The court acknowledged that technical difficulties, such as dropped calls during virtual proceedings, do occur and that the application to set aside the dismissal was filed promptly. In the interests of justice and given the lack of substantial prejudice to the defendants, the court exercised its discretion to reinstate the suit and allow the application.
Court Disposition
Application to set aside dismissal allowed; suit reinstated.
Orders
- The application dated 29/5/2023 is allowed in terms of prayers (2), (3), and (5).
- The file record shall be transmitted by the Deputy Registrar to Nakuru for directions as to hearing of the main suit.
Full Case Text
Judgment text and source record
32 paragraphs
Kipkorir & another (Suing for and on behalf of G3 Self-Help Group) v Tanui & 5 others (Land Case E047 of 2022) [2023] KEELC 21044 (KLR) (26 October 2023) (Ruling)
Neutral citation: [2023] KEELC 21044 (KLR)
Republic of Kenya
In the Environment and Land Court at Nakuru
Land Case E047 of 2022
FM Njoroge, J
October 26, 2023
Between
Kangor Yatich Kipkorir
1st Plaintiff
Lengong Kipyator
2nd Plaintiff
Suing for and on behalf of G3 Self-Help Group
and
Walter Tanui
1st Defendant
Wesley Kiptanui
2nd Defendant
Tom Kiptanui
3rd Defendant
Kenneth Kiptanui
4th Defendant
Kevin Kiptanui
5th Defendant
Edward Cherutich Kiptanui
6th Defendant
Ruling
1. This is a ruling on an application dated 29/5/2023 filed by the plaintiffs on 31/5/2023 under article 50(1) and 159(2) (d) and (e) of the constitution, sections 1A and 1B and 3A of the CPA order 12 rule 7 and order 51 of the CPR. It seeks orders that the setting aside the dismissal of the plaintiff’s suit on the basis of the grounds set out at the foot thereof and in the supporting affidavit of the applicant’s counsel which is attached thereto. The grounds are in brief that counsel for the applicant suffered world wide web network connection challenges and his call dropped as he travelled to Nakuru from the Molo direction, and as a result he was unable to log into the virtual court until later when he found that the court had already resumed but in open court for hearings and whereupon his enquiry he was informed that the present suit had been dismissed for non- attendance. He avers that the failure to attend court was unintentional and that it would be in the interests of justice to have the application for setting aside allowed. He believes that the defendants would not be prejudiced by such an order.
2. The respondents filed their response through the sworn affidavit of one Walter Tanui dated 7/6/2023 wherein he depones that the court was kind enough to set the file aside as they waited for counsel for the plaintiff and that the file was called again shortly after 9. 00 am when there was no representation for the plaintiff in court still and the matter was thus dismissed; that the practice of the court is that matters are mentioned online at 8: 30 am and parties are required to be ready at any time for the hearing. They aver that the applicant has failed to come to court with clean hands and apply that the applicant’s application be dismissed with costs to them.
3. The application was disposed of by way of written submissions at the order of the court and the defendants filed their submissions on 19/6/2023 while the plaintiff filed submissions on 13/6/2023. I have taken consideration of the contents of those submissions in preparing the present ruling.
4. The basis of the application is that counsel faced challenges in logging into the virtual court. there is no sufficient rebuttal from the respondents regarding that allegation. This court notes it in writing in the record when a acounsel’s call drops. The proceedinsg of 29/5/2023 do not show that mr matoke’s call dropped. He was recorded as absent whereupoin ms wangari promptly applied that the suit be dismissed under order 12 rule (3) (1) and the court dismissed the suit with costs. It appears that the application at hand was promptly filed on 31/5/2023 which is commendable for counsel and his client. I also note that if Mr Matoke’s call dropped before the case was called out by the court assistant the court may not have been aware of the fact that he had logged in. in any event as that fact is not seriously disputed by the respondents and this court is aware that the dropping of calls during proceedings unfortunately does occur at times it is prepared to grant Mr Matoke and the plaintiff a margin and reinstate the suit. I therefore allow the application dated 29/5/2023 in terms of prayers nos (2), (3) and (5). The file record shall be forthwith transmitted by the Deputy Registrar to Nakuru for transmission to the resident Judge for directions as to hearing of the main suit.
DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 26TH DAY OF OCTOBER, 2023. MWANGI NJOROGEJUDGE, ELC, MALINDI.