[2018] KEELC 268 (KLR)
The court found that the applicant was not served with notice prior to the dismissal of the suit for non-attendance. Since the respondents did not challenge the application and there was evidence of proper service of the application on them, the court exercised its discretion to set aside the dismissal order. The...
Source-derived case information.
- Citation
- [2018] KEELC 268 (KLR)
- Parties
- Plaintiff: Mara North Holdings Limited; Defendant: Saruni Kalamet Sengeny; Defendant: ZhongEA Asia Africa Hotels Co Ltd; Defendant: The District Lands Registrar, Narok County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 118 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Injunction
- Outcome
- application allowed; dismissal order set aside; injunction reinstated
- Judges
- MN Kullow
- Legal Topics
- Setting Aside Dismissal, Reinstatement of Injunction, Non Attendance, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mara North Holdings Limited
Plaintiff
Saruni Kalamet Sengeny
Defendant
ZhongEA Asia Africa Hotels Co Ltd
Defendant
The District Lands Registrar, Narok County
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Injunction
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be set aside.
- 2 Whether the injunction previously granted should be reinstated.
- 3 Whether the applicant was properly served with notice prior to dismissal.
Ratio Decidendi
The court found that the applicant was not served with notice prior to the dismissal of the suit for non-attendance. Since the respondents did not challenge the application and there was evidence of proper service of the application on them, the court exercised its discretion to set aside the dismissal order. The court held that it is in the interest of justice for the matter to be heard on its merits and that the applicant would suffer irreparable loss if the orders sought were not granted. Consequently, the court allowed the application, set aside the dismissal order, and reinstated the injunction previously granted.
Court Disposition
application allowed; dismissal order set aside; injunction reinstated
Orders
- The order of dismissal dated 31st January, 2018 is set aside.
- The order of injunction issued on 16th September, 2015 is reinstated.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 118 OF 2017
MARA NORTH HOLDINGS LIMITED...................................................PLAINTIFF
-VERSUS-
SARUNI KALAMET SENGENY....................................................1ST DEFENDANT
ZHONGEA ASIA AFRICA HOTELS CO LTD...........................2ND DEFENDANT
THE DISTRICT LANDS REGISTRAR, NAROK COUNTY....3RD DEFENDANT
RULING
The Application before me is the Notice of Motion dated 10th July, 2018 in which the Applicant seeks for orders to set aside an order made on 30th January, 2018 dismissing the suit herein for non-attendance and the reinstatement of the order of injunction issued in the matter on 16th September, 2015.
The Application was based on the grounds that the suit was dismissed on the hearing date as no notice was served upon the applicant prior to the said dismissal and that the court did exercise its discretion to set aside the order of dismissal.
The Application was further supported by the Affidavit of Daniel Sinoyia Muli where he deponed to the grounds that as stated herein above and further that it shall serve the interest of justice if the suit be determined on merit and unless the orders sought are granted, the applicant shall suffer irreparable loss and damages.
The Application was heard exparte after the court satisfied itself that there was proper service on the respondent and since they elected not to respond, the Application remains unchallenged and in the circumstance, I will allow the application in terms of prayers 2 and 3 of the notice of motion dated 10th July, 2018 and accordingly order that the order of dismissal dated 31st January, 2018 be set aside.
Each party to bear its costs.
DATED, SIGNED and DELIVERED in open court atNAROKon this4thday ofDecember, 2018
Mohammed Noor Kullow
Judge
4/12/18
In the presence of:
CA:Chuma
Plaintiff:present
N/A for the Defendant
Mohammed Noor Kullow
Judge
4/12/18