[2021] KEELC 3632 (KLR)
The court found that although the applicant and his advocate mistakenly attended the physical court instead of the virtual session, this mistake was excusable given the promptness in filing the application for reinstatement on the same day as the dismissal. The court noted that all matters were cause listed for...
Source-derived case information.
- Citation
- [2021] KEELC 3632 (KLR)
- Parties
- Applicant: Michael Mugambi Muruka; Respondent: The Land Registrar Tigania East District; Respondent: The Adjudication Officer, Karama Adjudication Section; Respondent: The Hon. Attorney General; Interested Party: Joseph M’Imunya Muruka; Interested Party: Peter Milionea; Interested Party: Gervasio Kakambi Thitura
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E005 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Application for Reinstatement of Dismissed Application
- Outcome
- Application for reinstatement allowed with costs to the interested parties.
- Legal Topics
- Reinstatement of Application, Virtual Court Procedure, Excusable Mistake, Inherent Jurisdiction, Land Registration, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Mugambi Muruka
Applicant
The Land Registrar Tigania East District
Respondent
The Adjudication Officer, Karama Adjudication Section
Respondent
The Hon. Attorney General
Respondent
Joseph M’Imunya Muruka
Interested Party
Peter Milionea
Interested Party
Gervasio Kakambi Thitura
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Application for Reinstatement of Dismissed Application
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for reinstatement of the dismissed application.
- 2 Whether the applicant's failure to attend the virtual court session constitutes an excusable mistake.
- 3 Whether the court should exercise its discretion to reinstate the application in the interests of justice.
Ratio Decidendi
The court found that although the applicant and his advocate mistakenly attended the physical court instead of the virtual session, this mistake was excusable given the promptness in filing the application for reinstatement on the same day as the dismissal. The court noted that all matters were cause listed for virtual hearing and that the applicant should have been aware, but nonetheless exercised its discretion to avoid injustice, allowing the reinstatement of the application. Costs were awarded to the interested parties as a balancing measure.
Court Disposition
Application for reinstatement allowed with costs to the interested parties.
Orders
- The application dated 19/01/2021 for reinstatement is allowed.
- Costs of the application are awarded to the interested parties.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC PETITION NO. E005 OF 2020
IN THE MATTER OF BREACH OF THE CONSTITUION AND ESPECIALLY ARTICLES 1 (1)(b), 1 (4)(b),2 ,3, 6, 10, 12, 19, 20, 21, 22, 23, 24, 27, 8, 40, 47, 48, 50, 60, 61, 64, 66, 68, 75, 77, 174, 175, 185, AND 197 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF SECTION 24,25, 78 AND 79 OF THE LAND REGISTRATION ACT NO. 3 OF 2012
AND
IN THE MATTER OF ARTCLES 2, 3, 4, 7, 13 AND 19 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS AND OTHER PROVISIONS THEREOF
AND
IN THE MATTER OF THE LAND REGISTRATION ACT AND THE LAND ACT
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES 2013, SECTION 4
BETWEEN
MICHAEL MUGAMBI MURUKA ...................................................APPLICANT
VERSUS
THE LAND REGISTRAR TIGANIA EAST
DISTRICT..................................................................................1ST RESPONDENT
THE ADJUDICATION OFFICER, KARAMA
ADJUDICATIONN SECTION ................................................2ND RESPONDENT
THE HON. ATTORNEY GENERAL.......................................3RD RESPONDENT
AND
JOSEPH M’IMUNYA MURUKA ...............................1ST INTERESTED PARTY
PETER MILIONEA ....................................................2ND INTERESTED PARTY
GERVASIO KAKAMBI THITURA ...........................3RD INTERESTED PARTY
RULING
1. Before me is a notice of motion dated 19/01/2021 seeking an order for the reinstatement of the application dated 29. 10. 2020 which was dismissed on 19. 1.2021. The applicant contends that him and his advocate went to the open court on 19. 1.2021 as they had the mistaken belief that the matter would be heard there. The applicant later learnt that the matter was dismissed during a virtual court session.
2. The interested parties have opposed the application vide the replying affidavit dated 8/02/2021 sworn by Joseph M’Imunya Muruka, the 1st interested party. He avers that their advocate on record had advised them that the matter would be heard virtually and when the matter was called out, the petitioner and his advocate failed to appear, hence the court properly and perfectly dismissed the application. That the excuses given by the petitioner are lame and unfounded as the court has been conducting mentions and applications virtually due to the covid-19 pandemic.
3. Section 3A of the Civil Procedure Act provides as follows:
“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
4. The exercise of this discretion is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but is not meant to assist a person who deliberately seeks to obstruct or delay the course of justice, See- Shah vs Mbogo & Another (1967) EA 116.
5. The applicant claims that he thought his matter was to be heard in open court. However, every matter coming up before the court on any given day is cause listed. The cause list which is disseminated to the advocates in advance clearly indicates that all applications and mentions are conducted through virtual sessions and not in open court. The applicant has not given any plausible explanation as to why him and his advocate were of the view that the matter would be handled in open court.
6. Nevertheless, I have taken into consideration that the application was filed promptly on the same date the earlier application was dismissed. The mistake of going to open court instead of logging into the virtual system is also excusable. I therefore allow the application but with costs being awarded to the interested parties.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 21ST DAY OF APRIL, 2021 IN PRESENCE OF:
C/A: Kananu
D. Maranya for petitioner
HON. LUCY. N. MBUGUA
ELC JUDGE