[2018] KEELC 1612 (KLR)
The court found that although lateness by advocates and litigants is not a satisfactory reason for reinstatement, in the interest of justice, the suit should be reinstated. The court exercised its discretion to set aside the dismissal order, subject to the strict condition that all parties must attend future hearing...
Source-derived case information.
- Citation
- [2018] KEELC 1612 (KLR)
- Parties
- Applicant: Njagi Kanampiu (suing as next friend Joseph Kthenya Kanampiu); Respondent: Kellen Nchunguni Riungu & 2 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 265 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed with conditions.
- Judges
- FM Njoroge
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Judicial Discretion, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njagi Kanampiu (suing as next friend Joseph Kthenya Kanampiu)
Applicant
Kellen Nchunguni Riungu & 2 Others
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside its order dismissing the suit for non-attendance and reinstate the suit.
- 2 Whether the applicant has provided sufficient reason for non-attendance on the hearing date.
Ratio Decidendi
The court found that although lateness by advocates and litigants is not a satisfactory reason for reinstatement, in the interest of justice, the suit should be reinstated. The court exercised its discretion to set aside the dismissal order, subject to the strict condition that all parties must attend future hearing dates without fail. Failure to attend the next hearing will result in automatic dismissal of the suit. The applicant is also required to serve the reinstatement orders on all defendants within five days.
Court Disposition
Application allowed with conditions.
Orders
- The suit is reinstated on condition that all parties attend future hearing dates without fail.
- If parties fail to attend the next hearing, the suit will automatically remain dismissed.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. 265 OF 2017
FORMERLY MERU ELC. 79 OF 2014
NJAGI KANAMPIU (SUING AS NEXT FRIEND
JOSEPH KTHENYA KANAMPIU).........PLAINTIFF/APPLICANT
VERSUS
KELLEN NCHUNGUNI RIUNGU & 2 OTHERS....DEFENDANTS
RULING
1. This application has been brought to court under a certificate of urgency. It is dated 2nd October, 2018. It seeks orders:
1. That the application be certified as urgent and be heard exparte in the first instance.
2. That the honourable court be pleased to set aside its orders of 1st October, 2018 dismissing the applicant’s suit for non attendance and thereafter reinstate the same.
3. That cost of this application be in the cause.
2. The application has the following grounds:
a. The applicant’s advocate inadvertently arrived late on the hearing date.
b. The failure by the advocate and the applicant not to be in court when case was recalled for hearing was not deliberate.
c. The applicant will expeditiously prosecute the case once it is reinstated.
d. That no prejudice will be suffered by the respondent.
e. The non attendance of the applicant and the advocate is highly regrettable.
3. It is supported by the affidavit of the applicant sworn on 2nd October, 2018 which states:
1. That I am the plaintiff/applicant herein and hence competent to swear this affidavit.
2. That my case was set for hearing on 1st October, 2018.
3. That when the case was called out around 9. 20am, I went out of the court room to call my advocate to inform him what the court had directed.
4. That I am illiterate, I don’t understand Swahili language well and I understood the clerk to have stated that the case would proceed at 10. 00am.
5. That the case was called out again at 9. 45am when I was outside attempting to top up my airtime so as to call my advocate who was travelling from Nairobi.
6. That my advocate arrived at 9. 50am when the case had just been dismissed.
7. That when I arrived in the court a few minutes to 10. 00am and I was shocked to be told by my advocate and the court clerk what had transpired.
8. That I humbly pray that the suit be reinstated as I have struggled with it since 2011.
9. That I am a poor litigant and hardly get money to pay my advocate who has been proceeding with this matter on pro-bono basis.
10. That I undertake to expeditiously prosecute this case to its logical conclusion.
11. That I highly regret any inconvenience which may be occasioned to the honourable court.
12. That what is deponed to herein above is true to the best of my knowledge, information and belief.
4. I have considered all the circumstances. I do not agree that it is a satisfactory reason that advocates and litigants should come to court late and then ask the court to exercise its discretion to reinstate their suits in their favour.
5. However in the interest of justice I will reinstate the suit on condition that the parties will be in court without fail during all future hearing dates. If the parties do not come to court during the next hearing date, the suit will automatically remain dismissed. The applicant is ordered to serve the orders issued by the court today upon all the defendants within 5 days of today without fail.
6. Parties are directed to come for the hearing of this suit on 23rd October, 20I8.
7. is so ordered
Delivered in open Court at Chuka this 4th day of October, 2018 in the presence of:
CA: Ndegwa
Miss Ngigi h/b Mugambi Njiru for the applicant
P.M. NJOROGE
JUDGE