[2020] KEELC 2320 (KLR)
The court found that the applicant had provided documents demonstrating a reasonable belief that the matter was listed for hearing on 3.12.2019 rather than 2.12.2019. Although the court did not find the explanation regarding the registry staff entirely plausible due to lack of specificity, the absence of opposition...
Source-derived case information.
- Citation
- [2020] KEELC 2320 (KLR)
- Parties
- Appellant: Maria Nduru M’Turuchiu (Sued as legal representative of the estate of Stanley M’Turuchiu M’Mwenda); Respondent: John Kirimi M’Mwenda; Respondent: Agnes Kanyamu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 21 of 2011
- Procedural Posture
- Elc Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application allowed; dismissal order set aside and application reinstated for hearing on merits.
- Legal Topics
- Setting Aside Orders, Reinstatement of Suit, Dismissal for Nonattendance, Court Registry Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maria Nduru M’Turuchiu (Sued as legal representative of the estate of Stanley M’Turuchiu M’Mwenda)
Appellant
John Kirimi M’Mwenda
Respondent
Agnes Kanyamu
Respondent
Procedural Posture
Elc Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the order dismissing the applicant's application for non-attendance should be set aside and the application reinstated for hearing on the merits.
- 2 Whether the applicant's explanation for non-attendance on the hearing date is reasonable.
Ratio Decidendi
The court found that the applicant had provided documents demonstrating a reasonable belief that the matter was listed for hearing on 3.12.2019 rather than 2.12.2019. Although the court did not find the explanation regarding the registry staff entirely plausible due to lack of specificity, the absence of opposition to the application and the reasonable nature of the applicant's belief justified setting aside the dismissal order. The court exercised its discretion to allow the application and reinstate the dismissed application for hearing on the merits, with no order as to costs.
Court Disposition
Application allowed; dismissal order set aside and application reinstated for hearing on merits.
Orders
- The order made on 2.12.2019 dismissing the applicant’s application is set aside.
- The applicant’s application is reinstated for hearing and determination on merits.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC APPEAL NO. 21 OF 2011
MARIA NDURU M’TURUCHIU (Sued as legal representative of the estate of
STANLEY M’TURUCHIU M’MWENDA.....................................APPELLANT
VERSUS
JOHN KIRIMI M’MWENDA..............................................1ST RESPONDENT
AGNES KANYAMU..............................................................2ND RESPONDENT
RULING
1. Vide the notice of motion dated 10. 2.2020, the applicant is seeking orders for the setting aside of the order made on 2. 12. 2019 dismissing the applicant’s application dated 18. 11. 2019 and/or amended application dated 28. 11. 2019 and reinstate the same for hearing and determination on merits and that costs of the application be provided for.
2. The grounds in support of the application are set out on the face of the application and in the supporting affidavit of the applicant’s advocate. The applicant contends that he filed the earlier application on 18. 11. 2019 under a certificate of urgency. The application was given the date of 2. 12. 2019.
3. However, the applicant’s and the clerk of his advocate were informed by the court registry staff that matter was coming up on 3. 12. 2019. That is why they were not in attendance on 2. 12. 2019 when the application was dismissed.
4. I find that the documents availed by the applicant demonstrate a reasonable argument that they believed the matter was listed on 3. 12. 2019 and not 2. 12. 2019. However, the contention that it is the ELC registry staff who gave them the wrong date is not plausible as applicant has not pinpointed the particular officer who allegedly gave them the date.
5. Nevertheless, the application is unopposed and I am inclined to allow the same with no orders as to costs.
DATED, SIGNED AND DELIVERED AT MERU THIS 28TH DAY OF MAY, 2020
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this ruling was given to the parties at the conclusion of the hearing and by a fresh notice by the Deputy Registrar. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE