[2015] KEELC 676 (KLR)
The court found that the order dismissing the suit on 28th March 2014 was inappropriate because the matter was only coming up for mention for directions on the Notice to show cause, not for hearing of the Notice itself. The Plaintiff's absence on that day, while not ideal, did not justify outright dismissal without...
Source-derived case information.
- Citation
- [2015] KEELC 676 (KLR)
- Parties
- Applicant: Madzo Mwangolo Henry; Defendant: James Munga Odondi; Defendant: Zakaria Karanja Kinyanjui; Defendant: Charles Maina; Defendant: Gitau Muchunu; Defendant: Ronald Kibe Kinyandui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 59 of 2009
- Procedural Posture
- Civil Case / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; dismissal order set aside; suit reinstated with conditions.
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Notice to Show Cause, Substituted Service, Land Occupation Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Madzo Mwangolo Henry
Applicant
James Munga Odondi
Defendant
Zakaria Karanja Kinyanjui
Defendant
Charles Maina
Defendant
Gitau Muchunu
Defendant
Ronald Kibe Kinyandui
Defendant
Procedural Posture
Civil Case / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the Plaintiff has provided sufficient reason for non-attendance on 28th March 2014.
- 3 Whether the suit should be reinstated and the Notice to show cause set down for hearing.
Ratio Decidendi
The court found that the order dismissing the suit on 28th March 2014 was inappropriate because the matter was only coming up for mention for directions on the Notice to show cause, not for hearing of the Notice itself. The Plaintiff's absence on that day, while not ideal, did not justify outright dismissal without a proper hearing of the Notice to show cause. The court exercised its discretion to set aside the dismissal order, reinstated the suit, and directed that the Notice to show cause be set down for hearing within 30 days. Failure to do so would result in automatic dismissal with costs.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated with conditions.
Orders
- The order of 28th March 2014 dismissing the suit is set aside.
- The Notice to show cause dated 8th January 2014 shall be set down for hearing by the Plaintiff within 30 days from the date of this Ruling.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.59 OF 2009
MADZO MWANGOLO HENRY............................PLAINTIFF/APPLICANT
VERSUS
JAMES MUNGA ODONDI...............................................1ST DEFENDANT
ZAKARIA KARANJA KINYANJUI..................................2ND DEFENDANT
CHARLES MAINA..........................................................3RD DEFENDANT
GITAU MUCHUNU...........................................................4TH DEFENDANT
RONALD KIBE KINYANDUI..............................................5TH DEFENDANT
R U L I N G
Introduction:
What is before me is the Plaintiff's Application dated 22nd September 2014 seeking for the following orders:
(a) That the order of this Honourable Court made on the 28th March, 2014 dismissing the suit filed herein be set aside and the said suit as filed herein on 15th June 2009 be reinstated
(b) That the Applicant will offer the costs of this Application
The Application is premised on the grounds that the suit concerns land on which the Plaintiff has lived for more than 50 years and it is only fair that she gets her day in court.
According to the affidavit sworn by the Plaintiff's counsel, they could not proceed with the prosecution of the suit because the Defendants could not be traced for service; that the Originating Summons was eventually served on the Defendants by way of substituted service and that after the Defence was filed, they invited the Defendants' advocate to take a convenient hearing date but they could not trace the said advocate.
The Plaintiff's counsel deponed that when the matter was fixed for the hearing of the Notice to show cause why the suit should not be dismissed, he was not in court because the matter had escaped his attention; that the Plaintiff has been very keen to have the matter prosecuted and that the court should indulge the Plaintiff.
In response, the Defendants' counsel submitted that the Application is an abuse of court process; that no reason has been given as to why the Plaintiff's counsel was not in court on 28th March, 2014 and that due diligence has not been exercised in this matter.
The Plaintiff's counsel filed his written submissions which I have considered. The Defendants did not file their submissions.
The record shows that this matter came up for the hearing of the Notice to show cause why the suit should not be dismissed pursuant to the provisions of Order 17 Rule 2 of the Civil Procedure Rules on 7th March 2014.
The matter was placed before the Deputy Registrar who directed that the same should be mentioned before the Judge on 28th March 2014 for directions. On that day, neither the Plaintiff nor his counsel was in court. The court proceeded to dismiss the matter for want of prosecution.
As I have stated, the matter came up for mention on 28th March 2014 for directions on the pending “Notice to show cause”. The correct thing that should have happened on that day was to set down the said Notice to show cause for hearing.
The matter was coming up for mention on 28th March 2014 and an order dismissing the suit was therefore inappropriate.
Consequently I shall, which I hereby do, set aside my order of 28th March 2014 dismissing the suit and direct that the Notice to show cause why this matter should not be dismissed for want of prosecution dated 8th January 2014 be set down for hearing by the Plaintiff within 30 days from the date of this Ruling.
Unless the Notice to show cause dated 8th January 2014 is set down by the Plaintiff for hearing within 30 days as stated above, the suit shall stand dismissed with costs.
Dated and delivered in Malindi this 6th day of February, 2015.
O. A. Angote
Judge