[2018] KEELC 3701 (KLR)
The court found that the plaintiff's counsel had provided a satisfactory explanation for her absence on the day the suit was dismissed for want of prosecution. The court also noted that the defendants' memorandum of appearance and statement of defence were filed irregularly and were improperly on record. Given these...
Source-derived case information.
- Citation
- [2018] KEELC 3701 (KLR)
- Parties
- Plaintiff: Margaret Nabuin Lomatong; Defendant: Sylvia Abei Kosiae; Defendant: Jackson Ekiru Kosiae
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 107 of 2017
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application to set aside dismissal granted; suit reinstated.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Formal Proof Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Nabuin Lomatong
Plaintiff
Sylvia Abei Kosiae
Defendant
Jackson Ekiru Kosiae
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether sufficient grounds have been established to warrant reinstatement of the suit.
Ratio Decidendi
The court found that the plaintiff's counsel had provided a satisfactory explanation for her absence on the day the suit was dismissed for want of prosecution. The court also noted that the defendants' memorandum of appearance and statement of defence were filed irregularly and were improperly on record. Given these circumstances, the court was satisfied that sufficient grounds existed to set aside the dismissal order. The application to reinstate the suit was therefore granted in terms of the specified prayers, with costs to be in the cause.
Court Disposition
Application to set aside dismissal granted; suit reinstated.
Orders
- The order of dismissal of the suit for want of prosecution issued on 21/3/2018 is set aside.
- The plaintiff's application dated 26/3/2018 is granted in terms of prayers (b) and (c).
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 107 OF 2017
MARGARET NABUIN LOMATONG.....................................PLAINTIFF
VERSUS
SYLVIA ABEI KOSIAE....................1ST DEFENDANT/RESPONDENT
JACKSON EKIRU KOSIAE............2ND DEFENDANT/RESPONDENT
R U L I N G
1. The application dated 26/3/2018 seeks an order setting aside the order of dismissal of this suit for want of prosecution issued on 21/3/2018. It is noteworthy that the application proceeded ex-parte. The reason why that was allowed by this court is that the court became aware that the order of dismissal was made after the formal proof hearing held on 11/12/2017 on which date there was no appearance on behalf of the defendants. However it is on the record that on 21/3/2018 when the matter came up for further formal proof hearing, Mr. Wafula holding brief for Ms. Nasike for the defendants, prayed that the matter be stood over generally on account of the absence of plaintiff’s counsel, a thing this court was not wont to do as it is the current practice that suits should always be active. This court promptly dispatched the suit into the category of dismissed cases for the reason of non-prosecution.
2. It has since been also brought to the attention of the court that the memorandum of appearance and the statement of defence of the 1st and 2nd defendants were filed irregularity on 20/3/2018 and are improperly on the record. The counsel for the plaintiff has also adequately explained why the plaintiff was not in court on the day of dismissal of the suit. Counsel had the erroneous belief, based on information received from a source she would otherwise believe to be truthful, that the court would not sit on that day, and she had informed the plaintiff. Nevertheless by some quirk of circumstances, though counsel was in court on that day on other matters, this matter escaped her attention.
3. Sufficient grounds have been laid for the order of setting aside the dismissal of this suit, and the plaintiff’s application dated 26/3/2018 is granted in terms of prayers Nos. (b)and(c). Costs of this application shall be in the cause.
Dated, signed and delivered at Kitale on this 13th day of April, 2018.
MWANGI NJOROGE
JUDGE
13/4/2018
Coram:
Before: Mwangi Njoroge, Judge
Court Assistant - Picoty
Ms. Mufutu holding brief for Oduor for Applicant
N/A for the Defendants
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
13/4/2018