[2018] KEELC 3556 (KLR)
The court found that the applicant's failure to attend court was not deliberate and was occasioned by improper service of the hearing notice, which was served on a herdsman brother rather than the plaintiff or applicant directly. The court also considered the plaintiff's advanced age and the breakdown in...
Source-derived case information.
- Citation
- [2018] KEELC 3556 (KLR)
- Parties
- Plaintiff: Lemiso Ole Murri; Defendant: Andrew Kirionki; Defendant: Moses Kirionki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 491 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Suit and Transfer to Magistrate's Court
- Outcome
- application allowed; suit reinstated and transferred to magistrate's court
- Judges
- MN Kullow
- Legal Topics
- Reinstatement of Suit, Setting Aside Judgment, Service of Process, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lemiso Ole Murri
Plaintiff
Andrew Kirionki
Defendant
Moses Kirionki
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Suit and Transfer to Magistrate's Court
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance.
- 2 Whether failure to attend court was deliberate or justified.
- 3 Whether the court should exercise its discretion to set aside its judgment and reinstate the suit.
Ratio Decidendi
The court found that the applicant's failure to attend court was not deliberate and was occasioned by improper service of the hearing notice, which was served on a herdsman brother rather than the plaintiff or applicant directly. The court also considered the plaintiff's advanced age and the breakdown in communication with their advocate following the death of the plaintiff's son. In the interest of justice, and noting that there was no intention to delay proceedings, the court exercised its discretion to allow the application for reinstatement. Additionally, since the suit fell within the jurisdiction of the Magistrate's Court, the court ordered its transfer to the Kilgoris Principal...
Court Disposition
application allowed; suit reinstated and transferred to magistrate's court
Orders
- The application dated 13th December, 2017 is allowed.
- No orders as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 491 OF 2017
FORMERLY KISII ELC NO. 1236 OF 2017
LEMISO OLE MURRI.............................PLAINTIFF
-VERSUS-
ANDREW KIRIONKI....................1ST DEFENDANT
MOSES KIRIONKI.......................2ND DEFENDANT
RULING
The Application before me is the Notice of Motion dated 13th December, 2017 seeking interalia for orders to reinstate the present suit and the same be heard on merit.
The Application is based on the grounds that failure to attend court on the date of hearing was not deliberate and that the Applicant was not served with a hearing notice to attend court and further that the Application was brought without undue delay.
The Application was supported by the Affidavit of the Applicant in which he depones that he is the son of the plaintiff who is elderly and that the hearing notice to the suit was served upon his brother who is a herdsman. He further states that when he contacted their Advocate on record he ceased acting since he could not get instructions from them and their failure to attend court was occasioned by the receipt of the hearing notice later. He contends that it will be just and fair to have the matter heard afresh.
The Application was opposed by the Respondents who filed grounds of opposition to the same. It is the Respondents contention that the Application is premature and misconceived and that the Applicant has not laid before court sufficient basis for the grant of the court to exercise its discretion. He further contends that the Affidavit in support of the application is defective to wit that the same has not been attested to at the jurat.
I have read the application before me. The application is one that seeks to benefit from the discretion of the court to set aside its judgment. Form the applicant’s affidavit he states that their only inability to be in court for the hearing of the matter is because the said notice was served on a herdsman who is his brother.
From the record and the Application I find that the inability of the applicant to attend court was not deliberate nor was the same meant to delay the hearing of the matter. From the pleading the plaintiff is elderly and being of his age could not comprehend as his son who had contact with the lawyer died and thus this may have contributed to the breakdown of communication between the advocate and client.
In view of the above and in the interest of justice I will allow the application dated 13th December, 2017 with no orders as to costs.
Further since the suit falls within the jurisdiction of the Magistrate’s court I order that the suit herein be transferred to Kilgoris Principal Magistrate’s Court for hearing and determination.
DATED, SIGNED and DELIVERED in open court at NAROK on this 20th day of APRIL, 2018
Mohammed Noor Kullow
Judge
20/4/2018
In the presence of:
CA:Chuma
Mr Kamwaro holding brief for Bosire for the plaintiff
Langat holding brief for Oguto for the defendants
Mohammed Noor Kullow
Judge
20/4/2018