[2020] KEELC 11 (KLR)
The court found that it was procedurally improper to dismiss the suit for want of prosecution while a consent order for stay of proceedings was in effect pending the outcome of related succession causes. The simultaneous existence of a stay and a dismissal order constituted an apparent error on the face of the...
Source-derived case information.
- Citation
- [2020] KEELC 11 (KLR)
- Parties
- Plaintiff: Lawrence Kariuki Karanja alias Geoffrey Mburu; Defendant: Lawrence Kagai Kariuki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 621 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Stay Proceedings
- Outcome
- Application allowed; dismissal order and consequential proceedings set aside; each party to bear own costs.
- Judges
- TM Olando
- Legal Topics
- Review of Court Orders, Dismissal for Want of Prosecution, Stay of Proceedings, Succession Related Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Kariuki Karanja alias Geoffrey Mburu
Plaintiff
Lawrence Kagai Kariuki
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Stay Proceedings
Legal Issues
- 1 Whether the court should review, vacate or set aside the order dismissing the suit for want of prosecution.
- 2 Whether the proceedings should be stayed pending the outcome of related succession causes.
- 3 Whether there was an apparent error on the face of the record due to simultaneous stay and dismissal orders.
Ratio Decidendi
The court found that it was procedurally improper to dismiss the suit for want of prosecution while a consent order for stay of proceedings was in effect pending the outcome of related succession causes. The simultaneous existence of a stay and a dismissal order constituted an apparent error on the face of the record. The court exercised its inherent jurisdiction to rectify this error by setting aside the dismissal order and all consequential proceedings, holding that no party should benefit from a procedural mistake by the court. Each party was ordered to bear their own costs.
Court Disposition
Application allowed; dismissal order and consequential proceedings set aside; each party to bear own costs.
Orders
- The order made on 20/3/2017 dismissing the suit for want of prosecution is set aside.
- All resultant proceedings are set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
ELC CASE NO. 621 OF 2015 (O.S)
(FORMELY HCC 143 OF 2012)
LAWRENCE KARUIKI KARANJA alias GEOFFREY MBURU...........PLAINTIFF
VERSUS
LAWRENCE KAGAI KARIUKI…....................................................DEFENDANT
RULING
Lawrence Kariuki Karanja alias Geoffrey Mburu (hereinafter referred to as the applicant) has come before this court with application dated 28/8/2019 seeking orders that this court reviews vacates or sets aside the order dated 25/7/2019. Moreover that this court stays the proceedings herein pending the hearing of the Succession Cause no. 892 of 1994 and Succession Cause number 236 of 1994. According to the applicant he filed a notice to act in person and was never served with any pleadings. It had been agreed that the matter be stayed pending the outcome of Nakuru High court Succession cases no. 892 of 1994 and 236 of 1994. The consent has never been set aside. No proceedings could ever been made. The court did not have any physical address of the applicant.
The Respondent states that the firm of Juliet Dima is not properly on record as the applicant has been acting in person. There is no notice of appointment of advocate. According to the respondent the notice to show cause was served by the court. Moreover, the respondent contends that the Succession Cause was determined on 6/10/2013. The applicant was aware of the determination of Succession came but kept to court in darkness.I have heard both parties.
To begin with it was un-procedural to proceed with the notice to show cause when there was a consent for stay of proceedings pending the outcome of the succession cause, in Nakuru. Dismissal for want of prosecution cannot be granted where there is stay of proceedings.
Though the plaintiff’s counsel has not filed a notice of appointment of advocate, this court observes that no party should be allowed to benefit where the court makes apparent error on the face of record in its presence but the party does not assist the court. In this case, there is an apparent error on the face of record whereby the court granted stay of proceedings and also dismissed the case for want of prosecution. For the above reasons, I do find that the court can grant orders ex debito Justiciae to rectify the court record.
I do act ex debito Justiciae and set aside the order made on 20/3/2017 dismissing the suit for want of prosecution. I do further set aside all resulted proceedings. Each party to bear own costs. Orders accordingly.
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
DATED AND DELIVERED THIS 30TH DAY OF January, 2020.
In the presence of:
MR OMONDI T FOR RESPONDENT
M/S DIMA FOR APPLICANT
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE