[2021] KEELC 2618 (KLR)
The court found that the cause list for the relevant date clearly indicated the matter was to be heard virtually via Microsoft Teams, and the applicant did not dispute receipt of this cause list. The applicant's advocate had effected service of the hearing date on the respondent's advocates, demonstrating awareness...
Source-derived case information.
- Citation
- [2021] KEELC 2618 (KLR)
- Parties
- Plaintiff: Mbogori Baichu; Defendant: David Gitonga Mungania (Sued as the legal representative of the Estate of Livingstone M’Mungania-Deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 14 of 2018
- Procedural Posture
- Notice of Motion / Ruling on Application to Review And/or Set Aside Dismissal Order
- Outcome
- application dismissed with costs to respondent
- Legal Topics
- Review of Court Orders, Dismissal for Want of Prosecution, Virtual Hearings, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbogori Baichu
Plaintiff
David Gitonga Mungania (Sued as the legal representative of the Estate of Livingstone M’Mungania-Deceased)
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Review And/or Set Aside Dismissal Order
Legal Issues
- 1 Whether the court should review and/or set aside the order dismissing the applicant's notice of motion for want of prosecution.
- 2 Whether the applicant's absence from the virtual hearing constituted sufficient cause for non-attendance.
Ratio Decidendi
The court found that the cause list for the relevant date clearly indicated the matter was to be heard virtually via Microsoft Teams, and the applicant did not dispute receipt of this cause list. The applicant's advocate had effected service of the hearing date on the respondent's advocates, demonstrating awareness of the virtual hearing arrangement. The court was not persuaded by the applicant's claim of inability to access court, as the hearing was not scheduled for physical attendance and no evidence was provided of any notice of court closure affecting virtual proceedings. Consequently, the application to review and/or set aside the dismissal order was found to be without merit and...
Court Disposition
application dismissed with costs to respondent
Orders
- The application dated 8.4.2021 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 14 OF 2018
(FORMERLY MERU HCC NO 71 OF 1995 AND NYERI HCCC NO. 60 OF 1987)
MBOGORI BAICHU................................................................. PLAINTIFF
-VERSUS-
DAVID GITONGA MUNGANIA (Sued as the legal representative of the
Estate of LIVINGSTONE M’MUNGANIA-DECEASED).........DEFENDANT
RULING
1. Before me is a notice of motion dated 8/04/2021, in which the defendant/applicant is seeking orders to review and/or set aside the order of 15th March 2021 dismissing the applicant’s notice of motion dated 26th February 22021 for want of prosecution. It is averred that the matter was coming up for hearing on 15th March 2021 when the applicant and his advocate went to the court premises but found the gate closed due to the death of one of the judicial staff. Upon inquiring at the registry, they were informed that the matter had been dismissed for want of prosecution. The applicant avers that he is keen to prosecute his application hence he prays that the same be reinstated.
2. The respondent has opposed the application averring that when the matter was called out, counsel for the applicant was not in attendance hence the matter was dismissed for want of prosecution. It is also averred that there was no indication that the matter would be heard physically and no notice was issued relating to the closure of court business.
3. I find that Section 3A of the Civil Procedure Act provides for the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process. The court has discretion to set aside a judgment or order. The exercise of this discretion is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice; See- Shah vs Mbogo & Another (1967) EA 116.
4. This court is well aware that due to the Covid 19 pandemic, matters before this court are usually conducted in the virtual platforms unless the matter is scheduled for full hearing.
5. I have had a chance to peruse the cause list for matters scheduled on 15. 3.2021 (a copy of which is now placed in the court file). The same indicates that matters listed as number 1 – 10 which were mentions, applications and submissions were to be heard via Microsoft, no’s 11-14 were full hearings in open court, while no. 15 was a ruling delivered via email. The current matter was listed as number 6 amongst other applications which were conducted via Microsoft Teams.
6. The cause list is usually sent online to advocates in advance. The applicants don’t dispute that they received this cause list. Indeed they are the ones who effected service of the date upon the respondent’s advocates.
7. In light of the foregoing, I am not persuaded by the applicants claim that they were unable to access court. In the circumstances, I find that the application dated 8. 4.2021 is unmerited. The same is hereby dismissed with costs to respondent.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 14TH DAY OF JULY, 2021 IN PRESENCE OF:
C/A: Kananu
Mbaabu for defendant
Mwanzia for plaintiff
HON. LUCY. N. MBUGUA
ELC JUDGE