[2018] KEELC 2007 (KLR)
The court found that there was no affidavit of service in the court file to confirm that the applicant and his counsel were served with the notice to show cause for dismissal. This raised a real possibility that they were not served, which explained their absence on the date the suit was dismissed. In the absence of...
Source-derived case information.
- Citation
- [2018] KEELC 2007 (KLR)
- Parties
- Plaintiff: Mugo Riakathari; Defendant: Muthike Miano; Defendant: John Murimi Githui; Defendant: Philip Wamethi Njir
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 77 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
- Outcome
- application allowed; suit reinstated
- Judges
- SN Mukunya
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Process, Pre Trial Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mugo Riakathari
Plaintiff
Muthike Miano
Defendant
John Murimi Githui
Defendant
Philip Wamethi Njir
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the applicant and his counsel were properly served with the notice to show cause for dismissal.
- 3 Whether the absence of the applicant and his counsel on the dismissal date was justified.
Ratio Decidendi
The court found that there was no affidavit of service in the court file to confirm that the applicant and his counsel were served with the notice to show cause for dismissal. This raised a real possibility that they were not served, which explained their absence on the date the suit was dismissed. In the absence of proof of service, the court held that the dismissal was irregular and that the applicant should not be penalized for non-attendance. Consequently, the court exercised its discretion to reinstate the suit, subject to compliance with pre-trial directions within 60 days, failing which the suit would be dismissed again.
Court Disposition
application allowed; suit reinstated
Orders
- The suit dismissed for want of prosecution is reinstated.
- The suit must be fast tracked for hearing by complying with Order II of the Civil Procedure Rules within 60 days, failing which it will be dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KERUGOYA
ELC CASE NO. 77 OF 2014
MUGO RIAKATHARI.....................................................................PLAINTIFF
VERSUS
MUTHIKE MIANO................................................................1ST DEFENDANT
JOHN MURIMI GITHUI.....................................................2ND DEFENDANT
PHILIP WAMETHI NJIR.....................................................3RD DEFENDANT
RULING
[1] The applicant filed this application on 1st of March 2017. He seeks for the reinstatement of this suit which was dismissed for want of prosecution on 6th December 2016. It is alleged that the matter was dismissed when it was listed for mention for dismissal and in the absence of the counsel for the applicant and the applicant himself. The applicant avers that he is desirous of proceeding with the suit.
Magee Wa Magee advocate who has the conduct of this case says that the case is not very old being a 2014 case and the same is less than five (5) years old. He avers that the pre-trial directions under Order II of the Civil Procedure Rules had not been taken and that the suit was not ripe for dismissal and that the reinstatement will not prejudice the respondent in any way.
[2] This application was opposed by the 1st and 3rd defendants. It was argued that the Notice To Show Cause for dismissal for 6th December 2016 was sent to the parties and to their advocates. On the dismissal day, the defendants attended but the plaintiff’s advocate did not attend. The suit was then dismissed for want of prosecution. Further, it is argued that no reasons were advanced to warrant reinstatement of the case. Finally, it is argued that the contention that “mistake of counsel should not be visited on the client” is an archaic and tired of principle that is no longer applicable in this day and age and that the client must face full responsibility of the actions and inactions of their counsel because it is they who hired them.
[3] I have perused the Court file and noticed that two notices for dismissal both dated 23rd November 2016 are still in the Court file. They are addressed to Momanyi Gichuki & Co. Advocates of P.O. Box 210 Embu and copied to Maina Kagio & Co. Advocates of P.O. Box 1081 Kerugoya and to District Land Registrar Kirinyaga Central of Kerugoya.
There is no affidavit of service by the process server in the Court file. The next document is the order of 9th December 2016. There is therefore a possibility that the applicant and his client were not served and that explains their absence on 6th day of December 2016
For that reason alone, I allow this application and order that the suit that was dismissed be reinstated. That the same be fast tracked for hearing by complying with Order II within the next 60 days failing which the suit will be dismissed.
Parties to fix this suit for hearing upon complying with Order II. Their shall be no order as to costs.
S.N. MUKUNYA
JUDGE
20TH JULY, 2018