[2018] KEELC 1429 (KLR)
The court found that the plaintiff's failure to prosecute the suit was attributable to the mistake of his former advocate, who failed to inform him of the Notice to Show Cause and the Bill of Costs, and who withdrew informally. The court emphasized the principle that suits should be determined on their merits and...
Source-derived case information.
- Citation
- [2018] KEELC 1429 (KLR)
- Parties
- Plaintiff: Mark Sikalabo Opicho; Defendant: Wilfred Wafula Opicho; Defendant: Tim Juma Opicho; Defendant: Mohammed Abdala Aseli
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 102 of 2014
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application allowed; dismissal order set aside; suit reinstated
- Judges
- FM Njoroge
- Legal Topics
- Setting Aside Dismissal, Want of Prosecution, Service of Process, Mistake of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Sikalabo Opicho
Plaintiff
Wilfred Wafula Opicho
Defendant
Tim Juma Opicho
Defendant
Mohammed Abdala Aseli
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the dismissal order issued on 7/2/2018 should be set aside to allow the plaintiff to prosecute his suit on merit.
- 2 Whether the plaintiff was properly served with the Notice to Show Cause and Bill of Costs prior to dismissal.
- 3 Whether the mistake of the plaintiff's advocate should be visited upon the plaintiff.
Ratio Decidendi
The court found that the plaintiff's failure to prosecute the suit was attributable to the mistake of his former advocate, who failed to inform him of the Notice to Show Cause and the Bill of Costs, and who withdrew informally. The court emphasized the principle that suits should be determined on their merits and that litigants should not be unduly punished for the mistakes of their advocates. The court was satisfied that the plaintiff had presented credible reasons for his absence and demonstrated a willingness to prosecute the suit. Consequently, the court exercised its discretion to set aside the dismissal order and allow the suit to proceed to hearing.
Court Disposition
application allowed; dismissal order set aside; suit reinstated
Orders
- The application dated 23rd July 2018 is allowed in terms of prayer 4.
- The dismissal order issued on 7/2/2018 is vacated.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 102 OF 2014
MARK SIKALABO OPICHO.............................................................PLAINTIFF
VERSUS
WILFRED WAFULA OPICHO.......................................................DEFENDANT
TIM JUMA OPICHO........................................................................DEFENDANT
MOHAMMED ABDALA ASELI.....................................................DEFENDANT
R U L I N G
1. The application dated 23/7/2018 seeks orders that:
1. ……spent
2. ...…spent
3. Pending the hearing of this application inter partes and pending the hearing and determination of the application herein there be a stay of further execution and seizure of the applicant’s proclaimed properties by Igare Auctioneers;
4. The dismissal order issued on 7/2/2018 be varied and or set aside and the plaintiff be allowed to prosecute his suit on merit
5. Costs be in the cause.
2. The application is premised on the grounds on its face as well as on the supporting affidavit of the plaintiff sworn on the 23rd July 2018.
3. The gist of the grounds for the application is that the suit was dismissed by mistake; that the applicant was not served with the Notice to Show Cause; that the applicant was not served with the Bill of Costs; that there is an error on the fact of the record; that the applicant had been having a sick wife who later on passed away; that the then advocates on record did not notify the applicant of the developments thereon despite being served with the Notice To Show Cause and Bill of Costs; that the applicant was not aware till 18/7/2017 when Igare Auctioneers proclaimed his properties; that the mistake of the Advocate should not be visited on the applicant and that the Advocate then on record ceased to act for the applicant informally.
4. The application is opposed by the defendant who only filed grounds of opposition dated 30th July, 2018. The core grounds evident in that response are that the applicant was adequately represented by Ms. Okile and Company Advocates in this matter until 23th July, 2018when the applicant sought leave to act in person; that the Ruling of the court dated 10/10/2016 was delivered by the court in the presence of the applicant and the advocate for the respondent; that the Notice of Dismissal dated 7/2/2018 was duly served by the court upon both parties when the applicant and his advocates failed to attend court and show cause why the suit should not be dismissed for want of prosecution; that Order 12 Rule 3 (1)and6(1) & (2) are very clear on the consequences of dismissal of a suit when the applicant failed to attend court and show cause to the satisfaction of the court and that this application should be dismissed and the applicant be condemned to pay costs.
5. In his submissions counsel for the plaintiffs reiterated the grounds in the application and the supporting affidavit. He urged that the defence does not deny that the plaintiffs have an interest in the property. He submitted that there are no letters of administration yet and the defendants are therefore intermeddling with the suit property.
6. I have considered the application before me and the grounds of opposition. The applicant attributes his situation to the mistake of his erstwhile advocate who is said to have withdrawn informally and who I have also considered the other factors mentioned by the applicant including the recent loss of his wife who passed on 10/5/2017 - and who is said to have been ailing before that as well as the allegation that the notice to show cause which led to the dismissal was not served upon the applicant.
7. It is the normal approach of the court that in as far as it is possible suits should be heard and determined on their merits. The notice to show cause was served upon the firm of Okile & Co Advocates on 10/12/2017. They affixed their stamp thereon upon receipt. There is no indication that they ever informed their client the plaintiff of the said notice and it is his case that he was not so informed. I have noted that the plaintiff has terminated the services of that firm of advocates. An inquiry into this application as to whether the advocates informed him is futile and unnecessary for now.
8. Before me is a litigant who has presented some problems that led to the dismissal of his suit for want of prosecution, and who appears to be keen to prosecute his suit on the merits. I am inclined to grant the application.
9. I hereby allow the application dated 23rd July 2018 in terms of prayer 4 thereof. The dismissal order issued on 7/2/2018 is hereby vacated. The suit will be fixed for hearing on a date convenient to the parties. The costs of the application will be in the cause.
Dated, signed and delivered at Kitale on this 25th day of September, 2018.
MWANGI NJOROGE
JUDGE
25/9/2018
Coram: Before Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
N/A for the plaintiff
N/A for the defendant
Plaintiff present in court
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
25/9/2018