[2024] KEELC 13264 (KLR)
The court found that while there was some indolence on the part of the applicant in failing to follow up on the court process, the non-attendance at the hearing was primarily due to the advocates' lack of awareness of the hearing date, which was not communicated to them. The court held that mistakes by counsel...
Source-derived case information.
- Citation
- [2024] KEELC 13264 (KLR)
- Parties
- Applicant: Linus Kipkemboi Koros; Applicant: Gregory Kipchumba Koros; Applicant: Andrew Kirwa Rotich; Applicant: Pauline Rotich; Respondent: Valerian Kipngetich Tormoi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kapsabet
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E005 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application allowed
- Judges
- MN Mwanyale
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Non Attendance, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Linus Kipkemboi Koros
Applicant
Gregory Kipchumba Koros
Applicant
Andrew Kirwa Rotich
Applicant
Pauline Rotich
Applicant
Valerian Kipngetich Tormoi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the application to set aside the dismissal for non-attendance and reinstate the application is merited.
Ratio Decidendi
The court found that while there was some indolence on the part of the applicant in failing to follow up on the court process, the non-attendance at the hearing was primarily due to the advocates' lack of awareness of the hearing date, which was not communicated to them. The court held that mistakes by counsel should not be visited upon the litigant, and that sufficient reason had been shown to warrant setting aside the dismissal. Consequently, the application to reinstate the dismissed application was allowed.
Court Disposition
application allowed
Orders
- The application dated 26/4/2024 is allowed.
- The dismissed application dated 8/3/2024 is reinstated.
Full Case Text
Judgment text and source record
32 paragraphs
Koros & 3 others v Tormoi (Environment and Land Miscellaneous Application E005 of 2024) [2024] KEELC 13264 (KLR) (14 November 2024) (Ruling)
Neutral citation: [2024] KEELC 13264 (KLR)
Republic of Kenya
In the Environment and Land Court at Kapsabet
Environment and Land Miscellaneous Application E005 of 2024
MN Mwanyale, J
November 14, 2024
Between
Linus Kipkemboi Koros
1st Applicant
Gregory Kipchumba Koros
2nd Applicant
Andrew Kirwa Rotich
3rd Applicant
Pauline Rotich
4th Applicant
and
Valerian Kipngetich Tormoi
Respondent
Ruling
1. On 11/3/2024, this Court dealt with the application dated 8th March 2024 directing interparty hearing on 19/3/2024.
2. On 19/3/2024 when the matter came up for hearing interpartes the Applicant’s Advocates were not present and as a result the application dated 8th March 2024 was dismissed for non-attendance and want of prosecution.
3. The application before Court subject of this Ruling dated 26/4/2024 seeks setting aside of the proceedings of 19/3/2024 and further reinstatement of the application dated 8/3/2024.
4. In his submission in support of the application Mr. Serem Learned Counsel for the Applicant submitted that the non-attendance was not deliberate as the reasons was that the Counsels were not aware of the directions issued on 11/3/2024 as these were not communicated to them.
5. In opposition to the application Mr. Kiboi Learned Counsel for the Respondent placing reliance on the Replying Affidavit submitted that the Applicant was indolent in bringing in the application and that he has not given sufficient reasons as to why he was not in Court.
6. He invited the Court thus to dismiss the application.
7. The only issue for determination is whether the application is merited.
8. For the application to be meritious, an Applicant must show sufficient reasons. In his affidavit, the reasons deponed are that the Applicants Advocate were not aware of the date for interparte hearing hence their non-attendance as deponed by the Advocate at paragraph 5.
9. Although there was indolence on the part of the Applicant who was not vigilant enough to follow up on the Court process after filing the application, the non-follow up was occasioned by his Advocates and their mistakes should not be visited upon the innocent litigant, as has been held by various dictas of the Court.
10. In the circumstances, the Court allows the application and reinstates the dismissed application dated 8th March 2024.
11. Parties shall file submissions on the said application and mention shall be on 9/12/2024 to take further directions.
RULING DELIVERED AND DATED AT KAPSABET THIS 14TH DAY OF NOVEMBER, 2024. HON. M. N. MWANYALE,JUDGE.In the presence of;Mr. Sagasi holding brief for Mr. Serem for ApplicantMr. Kiboi holding brief for Respondent