[2018] KEELC 4399 (KLR)
The court found that the Plaintiffs failed to provide credible evidence to support their claim that the matter was erroneously listed and dismissed on the wrong date. The record showed the matter was fixed for hearing on 21st March, 2017, and was dismissed on that date for non-attendance by the Plaintiffs and their...
Source-derived case information.
- Citation
- [2018] KEELC 4399 (KLR)
- Parties
- Plaintiff: Nancy Wairimu Njau; Plaintiff: Geoffrey Njau Mungai; Defendant: Joseph Okemwa Ontweka; Defendant: Dickson Ndechu Gatongo; Defendant: Mrs. Michael Njuguna
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 75 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Setting Aside Orders, Dismissal for Non Attendance, Cause List Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Wairimu Njau
Plaintiff
Geoffrey Njau Mungai
Plaintiff
Joseph Okemwa Ontweka
Defendant
Dickson Ndechu Gatongo
Defendant
Mrs. Michael Njuguna
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the Plaintiffs have provided sufficient reason to set aside the dismissal order for non-attendance.
- 2 Whether the matter was erroneously listed and dismissed on the wrong date.
Ratio Decidendi
The court found that the Plaintiffs failed to provide credible evidence to support their claim that the matter was erroneously listed and dismissed on the wrong date. The record showed the matter was fixed for hearing on 21st March, 2017, and was dismissed on that date for non-attendance by the Plaintiffs and their advocate. The Plaintiffs did not annex the relevant cause lists to substantiate their allegations. Consequently, the court held that no sufficient reason had been advanced to warrant setting aside the dismissal order, and the application was dismissed with costs.
Court Disposition
application dismissed
Orders
- The application dated 22nd March, 2017 is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 75 OF 2009
NANCY WAIRIMU NJAU..........................................1ST PLAINTIFF
GEOFFREY NJAU MUNGAI....................................2ND PLAINTIFF
VERSUS
JOSEPH OKEMWA ONTWEKA...........................1ST DEFENDANT
DICKSON NDECHU GATONGO .........................2ND DEFENDANT
MRS. MICHAEL NJUGUNA..................................3RD DEFENDANT
RULING
1. In the Application dated 22nd March, 2017, the Plaintiffs are praying for the setting aside of the orders of this court of 21st February, 2017 dismissing the suit for want of attendance.
2. The Application is premised on the grounds that the Plaintiffs’ advocate was in court on 21st March, 2017 for the hearing of the suit; that the matter was not on the daily cause list of 21st March, 2017 and that instead the matter was listed for hearing on 21st February, 2017.
3. The Plaintiffs’ advocate deponed that the dismissal of the matter was not due to his fault but that of the court officers.
4. The Application was not opposed by the Defendants.
5. The record shows that on 18th January, 2017, this matter was fixed for hearing for 21st March, 2017. The hearing date was taken by the Plaintiffs’ advocate who served on the Defendants a hearing notice. The hearing notice clearly shows that the matter was to be heard on 21st March, 2017 and the same was received by the Defendants’ advocate on 18th January, 2017.
6. The Plaintiffs’ advocate has deponed that this matter was listed for hearing on 21st February, 2017 instead of 21st March, 2017. However, the Plaintiffs’ advocate has not annexed on his Affidavit the cause list for both dates to enable the court ascertain if indeed the matter was listed for hearing on 21st February, 2017 and not 21st March, 2017.
7. In any event, the record clearly shows that the matter was before me on 21st March, 2017 and not on 21st February, 2017 as alleged by the Plaintiffs’ advocate. On the said date, the court dismissed the matter for non-attendance by the Plaintiffs and their advocate.
8. The allegation that the matter was dismissed on 21st February, 2017 is therefore not supported by any evidence.
9. In the circumstances, I find that no good reason has been given to warrant the setting aside of the orders of 21st March, 2017. The Application dated 22nd March, 2017 is therefore dismissed with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF FEBRUARY, 2018.
O.A. ANGOTE
JUDGE