[2018] KEELC 1701 (KLR)
The court found that the plaintiffs provided a reasonable explanation for their non-attendance, specifically the 1st plaintiff's illness and subsequent medical treatment. Although no explanation was provided for counsel's absence, the lack of opposition from the respondents influenced the court to exercise its...
Source-derived case information.
- Citation
- [2018] KEELC 1701 (KLR)
- Parties
- Plaintiff: Margaret Ngina Igogo; Plaintiff: Allan Mbugua Igogo; Defendant: Monica Waithira Ticha; Defendant: The Land Registrar – Kiambu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 94 of 2015
- Procedural Posture
- Notice of Motion / Application for Reinstatement of Suit
- Outcome
- application allowed; suit reinstated
- Judges
- BM Eboso
- Legal Topics
- Reinstatement of Suit, Non Attendance, Judicial Discretion
- 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
Margaret Ngina Igogo
Plaintiff
Allan Mbugua Igogo
Plaintiff
Monica Waithira Ticha
Defendant
The Land Registrar – Kiambu
Defendant
Procedural Posture
Notice of Motion / Application for Reinstatement of Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance by the plaintiffs.
- 2 Whether the explanation for the plaintiffs' absence is sufficient to warrant reinstatement.
Ratio Decidendi
The court found that the plaintiffs provided a reasonable explanation for their non-attendance, specifically the 1st plaintiff's illness and subsequent medical treatment. Although no explanation was provided for counsel's absence, the lack of opposition from the respondents influenced the court to exercise its discretion in favour of the applicants. The court therefore allowed the application and reinstated the suit, emphasizing that the absence of opposition and the explanation for non-attendance justified the exercise of discretion.
Court Disposition
application allowed; suit reinstated
Orders
- The suit is reinstated.
- The application dated 6/6/2017 is allowed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO 94 OF 2015
MARGARET NGINA IGOGO...............................................1ST PLAINTIFF
ALLAN MBUGUA IGOGO....................................................2ND PLAINTIFF
VERSUS
MONICA WAITHIRA TICHA............................................1ST DEFENDANT
THE LAND REGISTRAR – KIAMBU..............................2ND DEFENDANT
RULING
1. On 23/6/2017, the plaintiff brought a Notice of Motion dated 6/6/2017 seeking a reinstatement of this suit. It was premised on the ground that on 22/5/2017 when the suit came up for hearing, the 1st plaintiff who was to give evidence in the suit was in poor health. The application was supported by the affidavit of Margaret Ngina Igogo (1st plaintiff) sworn on 6/6/2017. She deposed that she had agreed with the 2nd plaintiff that she would be the one to give evidence. On the morning of 22/5/2017, she fell sick and could hardly stand up without being supported. She attended Wangige Sub-County Hospital where she received treatment. She urged the Court to reinstate the suit.
2. The application was not opposed. Mr. Mwaura Shairi Counsel for the applicant urged the court to reinstate the suit.
3. I have considered the application. I have also considered the explanation tendered by the plaintiffs to account for their failure to attend court. I however note that there is no explanation tendered by counsel to explain why he was not in court. My decision on the application would perhaps have been different had the respondents opposed it. In the absent of any opposition, I will reluctantly exercise the court’s discretion in favour of the applicants. I allow the application and reinstate the suit.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 28TH DAY OF SEPTEMBER 2018.
B M EBOSO
JUDGE
In the presence of:-
Mr Mbaji holding brief for Mwaura Advocate for the plaintiff
June Nafula - Court Clerk