[2018] KEELC 4455 (KLR)
The court found that the failure of the applicant's advocate to attend court when the matter was called was a mistake that should not be visited upon the applicant. The court exercised its discretion to set aside the dismissal order of 27/07/2017, reinstated the application dated 15/2/2017, and directed that it be...
Source-derived case information.
- Citation
- [2018] KEELC 4455 (KLR)
- Parties
- Plaintiff: Martin Bundi Ndubi; Defendant: M’Ndubi M’Itome
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 50 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application allowed
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Mistake of Advocate, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Bundi Ndubi
Plaintiff
M’Ndubi M’Itome
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the orders made on 27/07/2017 dismissing the application should be set aside or varied.
- 2 Whether the application dated 15/2/2017 should be reinstated and heard on its merits.
- 3 Whether the mistake of an advocate should be visited upon the client.
Ratio Decidendi
The court found that the failure of the applicant's advocate to attend court when the matter was called was a mistake that should not be visited upon the applicant. The court exercised its discretion to set aside the dismissal order of 27/07/2017, reinstated the application dated 15/2/2017, and directed that it be heard on its merits. The applicant was ordered to bear the costs of the present application as a condition for reinstatement.
Court Disposition
application allowed
Orders
- The orders made on 27/07/2017 are set aside.
- The application dated 15/2/2017 is reinstated and to be heard on 23/4/2018.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 50 OF 2017
MARTIN BUNDI NDUBI ………..PLAINTIFF
VERSUS
M’NDUBI M’ITOME …….1ST DEFENDANT
R U L I N G
1. The Notice of Motion dated 28th August, 2011 seeks orders that the orders made on 27/07/2017 be set aside, vacated or varied and for the Application dated 15/2/2017 to be reinstated and heard on merits.
2. It is averred that Mrs. Kaume Advocate for the applicant was in Court No. 3 and the matter had not been reached when she was called before Justice Njoroge and she rushed to attend to that matter before the said court. When she came back to this Court, she found the matter had been called out and dismissed.
3. Service was effected but no response was filed.
4. I find that this is a case where the mistake of an Advocate should not be visited upon the party.
5. I therefore allow the application of 28:08:17 but applicant is to bear the costs of this application.
6. Further orders: Application of 15. 2.2017 to be heard on 23. 4.2018 service to be effected failure to which the application will stand as dismissed.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 21st FEBRUARY, 2018 IN THE PRESENCE OF:-
Court Assistant: Janet/Galgalo
Muthamia holding brief for Mrs. Kaume for plaintiff present
Defendant in person- absent
HON. L. N. MBUGUA
ELC JUDGE