[2019] KEELC 3955 (KLR)
The court found that the Defendants/Applicants failed to provide credible evidence to support their claim that their advocate was unwell on the hearing date, as no medical or treatment note was annexed. The court further held that the Defendants had not entered appearance or filed a Defence despite being served by...
Source-derived case information.
- Citation
- [2019] KEELC 3955 (KLR)
- Parties
- Plaintiff: Lakeview Investments Ltd; Defendant: Ian Magara Bwosiemo; Defendant: Brenda Kwamboka Manwah; Defendant: Al Ruhia Estate Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 210 of 2011
- Procedural Posture
- Review Application / Ruling on Application to Review and Set Aside Dismissal Order
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Review of Court Orders, Dismissal for Non Attendance, Setting Aside Judgment, Service by Advertisement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lakeview Investments Ltd
Plaintiff
Ian Magara Bwosiemo
Defendant
Brenda Kwamboka Manwah
Defendant
Al Ruhia Estate Ltd
Defendant
Procedural Posture
Review Application / Ruling on Application to Review and Set Aside Dismissal Order
Legal Issues
- 1 Whether the court should review and set aside the dismissal order of the Application dated 17th January, 2018 for want of prosecution and non-attendance.
- 2 Whether the Application dated 17th January, 2018 should be reinstated.
- 3 Whether the mistake of an advocate should be visited upon the client in the circumstances of this case.
Ratio Decidendi
The court found that the Defendants/Applicants failed to provide credible evidence to support their claim that their advocate was unwell on the hearing date, as no medical or treatment note was annexed. The court further held that the Defendants had not entered appearance or filed a Defence despite being served by advertisement, and their conduct indicated an intention to delay the finalization of the matter. The court concluded that there was no sufficient reason to review or set aside the dismissal order, and that the interests of justice required the matter to be brought to closure. Accordingly, the Application for review and reinstatement was dismissed with costs.
Court Disposition
application dismissed
Orders
- The Defendants' Application dated 21st May, 2018 is dismissed with costs.
- The suit is marked as finalized.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 210 OF 2011
LAKEVIEW INVESTMENTS LTD..........................PLAINTIFF
VERSUS
IAN MAGARA BWOSIEMO..........................1ST DEFENDANT
BRENDA KWAMBOKA MANWAH.............2ND DEFENDANT
AL RUHIA ESTATE LTD...............................3RD DEFENDANT
RULING
1. In the Application dated 21st May, 2018, the Defendants/Applicants are seeking for the following orders:
a. The Honourable Court be pleased to review and set aside the dismissal order of the Application dated 17th January, 2018 on 15th May, 2018.
b. The Honourable Court be pleased to reinstate the Application dated 17th January, 2018 and give directions accordingly.
c. Costs be provided for.
2. The Application is premised on the grounds that the Application dated 17th January, 2018 was dismissed for want of prosecution and non-attendance; that the Defendants’ advocate sent a representative to attend court with instructions to request Mr. Uvyu advocate to adjourn the matter because the Applicants’ counsel was unwell and that the said representative arrived in court late.
3. The Defendants’ counsel deponed that there was no deliberate intention to fail to attend court; that the Defendants’ Application raises serious issues of law and fact and that the mistake of an advocate should not be visited on the Applicants.
4. The Applicants’ advocate’s court clerk deponed that while on his way to court, the vehicle he had boarded was stopped by the traffic police who held it up for a long period and that he arrived in court at 9. 15a.m and found the matter had already been called out and dismissed.
5. In response, the Plaintiff’s/Respondent’s counsel deponed that this suit was heard and determined by the court on 5th October, 2017; that the court exercised its discretion to dismiss the Application dated 17th January, 2018 and that although the Applicants were served with Summons to Enter Appearance, they never defended the suit.
6. The Defendants’ advocate submitted that the court should exercise its direction by doing justice to the parties; that the dismissed Application be reinstated and that the overriding objective as enshrined in Article 159 of the Constitution obligates the courts to do substantive justice.
7. The Plaintiff’s advocate submitted that there is no evidence to show that the Defendants’ advocate was unwell; that the court correctly exercised its discretion in dismissing the Application and that the Defendants have always employed delaying tactics to sabotage the successful determination of the matter. Both parties relied on authorities which I have considered.
8. The record shows that despite the Defendants having been served with the Summons to Enter Appearance by way of advertisement in the Nation Newspaper, they neither entered appearance nor filed a Defence. After hearing the evidence from the Plaintiff’s witnesses, the court entered Judgment in favour of the Plaintiff. The said Judgment was delivered on 5th October, 2017.
9. The Defendants/Applicants filed the Application dated 17th January, 2018 in which they sought to set aside the Judgment of the court. However, the Defendants’ counsel was not in court when the Application came up for hearing on 15th May, 2018.
10. Although the Defendants’ counsel has deponed that he was unwell and that he sent his clerk to instruct Mr. Uvyu advocate to hold his brief, he did not annex any medical or treatment note to show that he was unwell on 15th May, 2018. The issue of him being unwell on the day he was supposed to be in court to prosecute the Application dated 17th January, 2018 has not been proved.
11. In any event, if indeed the Defendants’ counsel was aware that Mr. Uvyu was in court on 15th May, 2018, and that Mr. Uvyu was to hold his brief, what was so difficult with Mr. Uvyu addressing the court when the matter was called out? If the clerk came to court late and found the matter had been dismissed, it means that the Defendants’ advocate never communicated to Mr. Uvyu advocate in advance to hold his brief.
12. The circumstances of this case shows that the Defendants’ intention is to delay the finalization of this matter. Indeed, having not entered appearance and filed a Defence even after being served with the Summons to Enter Appearance by advertisement, the Defendants should refund the part payment of the purchase price as ordered by the court, so as to bring this old matter to a closure.
13. For those reasons, I decline to allow the Defendants’ Application dated 21st May, 2018. The Application dated 21st May, 2018 is therefore dismissed with costs.
14. For avoidance of doubt, this suit is marked as having been finalized.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 22ND DAY OF MARCH, 2019.
O.A. ANGOTE
JUDGE