[2023] KEELC 21267 (KLR)
The court found that the plaintiff failed to file the amended plaint within the time granted by the court and did not seek leave for extension or reinstatement. As a result, there was no active suit before the court at the time the application for reinstatement was filed. The application was therefore incompetent,...
Source-derived case information.
- Citation
- [2023] KEELC 21267 (KLR)
- Parties
- Applicant: William Komen; Defendant: David Kigen Alias Chepunyuk
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 9 of 2023
- Procedural Posture
- Environment and Land Case / Ruling on Application for Reinstatement of Suit
- Outcome
- application dismissed
- Judges
- L Waithaka
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Amendment of Pleadings, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Komen
Applicant
David Kigen Alias Chepunyuk
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance.
- 2 Whether the amended plaint filed out of time without leave rendered the suit inactive.
- 3 Whether the application for reinstatement was properly before the court.
Ratio Decidendi
The court found that the plaintiff failed to file the amended plaint within the time granted by the court and did not seek leave for extension or reinstatement. As a result, there was no active suit before the court at the time the application for reinstatement was filed. The application was therefore incompetent, an abuse of the court process, and a waste of judicial time. The court exercised its discretion to dismiss the application, noting that there was no basis to reinstate a suit that was not properly before the court.
Court Disposition
application dismissed
Orders
- The application dated 13th July 2023 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
Komen v Kigen alias Chepunyuk (Environment & Land Case 9 of 2023) [2023] KEELC 21267 (KLR) (23 October 2023) (Ruling)
Neutral citation: [2023] KEELC 21267 (KLR)
Republic of Kenya
In the Environment and Land Court at Kabarnet
Environment & Land Case 9 of 2023
L Waithaka, J
October 23, 2023
Between
William Komen
Applicant
and
David Kigen Alias Chepunyuk
Defendant
Ruling
1. The application dated 13th July 2023, filed by Kemboi & Company Advocates is brought under Article 159 of the Constitution of Kenya, Section 1A,1B, 3A and 7 of the Civil Procedure Act and order 12 rule 7 of the Civil Procedure Rules, seeking the following orders:1. Spent.
2. That this suit be and is hereby reinstated, and the Deputy Registrar is hereby ordered to give it a date on priority basis.
3. That this Honourable Court be pleased to issue any further orders geared at upholding substantive justice.
4. That costs of this application be provided for.
2. The application is premised on the grounds on its face and is supported by the affidavit of Kipkemboi Levi Sirma, sworn on 13th July, 2023. He deposes that on the date the suit was dismissed for non-attendance, he experienced a power outage in his office and his attempts to log in using his mobile phone were not successful because his bundles had depleted; that by the time he loaded his phone with airtime, the matter had been dismissed; that failure to log in on time was not deliberate; that the application has been filed in good time and be allowed.
3. The application is not opposed.
4. A review of the court record shows that on 24th May 2017, Odeny J, granted the plaintiff leave of 14 days to amend his plaint failure to which the suit would stand dismissed.
5. The plaintiff filed an amended plaint on 16th June 2017 after time granted to file the amended plaint had lapsed. No leave was sought to extend the time within which to file the amended plaint and neither was an application to reinstate the suit filed. As at the time of filing the instant application, there was no active suit before this court.
6. For the above reason, I find the application bad in law, an abuse of the court process and a waste of court’s time. Consequently, I dismiss the application with no orders on costs as it was not defended.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED, AT KABARNET THIS 23RD DAY OF OCTOBER, 2023L. N. WAITHAKAJUDGE