[2018] KEELC 1707 (KLR)

[2018] KEELC 1707 (KLR)

The court found that neither the plaintiff nor his advocate was aware of the hearing date as there was no evidence of service of the hearing notice. The absence of the plaintiff and his advocate was not deliberate, and the plaintiff demonstrated continued interest in prosecuting the suit. The defendants did not oppose the application. In the interest of justice and to avoid irreparable harm to the plaintiff, the court exercised its discretion to set aside the dismissal order and reinstate the suit for hearing.

Citation
[2018] KEELC 1707 (KLR)
Parties
Plaintiff: Makembo Kaya; Defendant: Silas Nyaga; Defendant: Joseph Mugambi Kamuyu; Defendant: Elijah Muthengi Kamuyu; Defendant: Grace Githinji Kamuyu; Defendant: Ruth Mwende; Defendant: Jacob Mutethia Gakiroru; Defendant: John Kamunyu Gakiroru
Court
Environment and Land Court
Court Station
Environment and Land Court at Chuka
Jurisdiction
Kenya
Judgment Date
1 October 2018
Case Number
Environment & Land Case 13 of 2017
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
Outcome
Application allowed; dismissal order set aside; suit reinstated for hearing.
Legal Topics
Setting Aside Dismissal, Service of Process, Land Disputes
Source Language
English
Land and Property Civil Procedure Setting Aside Dismissal Service of Process Land Disputes

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Makembo Kaya

Plaintiff

Silas Nyaga

Defendant

Joseph Mugambi Kamuyu

Defendant

Elijah Muthengi Kamuyu

Defendant

Grace Githinji Kamuyu

Defendant

Ruth Mwende

Defendant

Jacob Mutethia Gakiroru

Defendant

John Kamunyu Gakiroru

Defendant

Procedural Posture

Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order

Legal Issues

  1. 1 Whether the dismissal order of 6.2.2018 should be set aside for want of service of the hearing notice.
  2. 2 Whether the plaintiff will suffer irreparable harm if the dismissal order is not set aside.
  3. 3 Whether the defendants will be prejudiced by the setting aside of the dismissal order.

Ratio Decidendi

The court found that neither the plaintiff nor his advocate was aware of the hearing date as there was no evidence of service of the hearing notice. The absence of the plaintiff and his advocate was not deliberate, and the plaintiff demonstrated continued interest in prosecuting the suit. The defendants did not oppose the application. In the interest of justice and to avoid irreparable harm to the plaintiff, the court exercised its discretion to set aside the dismissal order and reinstate the suit for hearing.

Court Disposition

Application allowed; dismissal order set aside; suit reinstated for hearing.

Orders

  • The dismissal order of 6.2.2018 is set aside.
  • The suit is reinstated and a fresh hearing date is set for 16th October, 2018.