[2023] KEELC 20029 (KLR)
The court found that the applicant had repeatedly failed to prosecute her suit and applications for reinstatement over a period exceeding five years. The court emphasized that it is the responsibility of the litigant to be diligent and in constant communication with their advocate regarding the status of their case....
Source-derived case information.
- Citation
- [2023] KEELC 20029 (KLR)
- Parties
- Applicant: Monica Auma Odeny (Suing as the Legal Representative of the Estate of Micah Odhiambo Mbani-Deceased); Defendant: Abdirizak Hillow Ibrahim; Defendant: Abdi Hassan Ali; Defendant: The Board of Trustees NSSF
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 778 of 2016
- Procedural Posture
- Environment and Land Case / Ruling on Application for Reinstatement of Suit
- Outcome
- application dismissed with costs to 3rd defendant; file closed
- Judges
- LN Mbugua
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monica Auma Odeny (Suing as the Legal Representative of the Estate of Micah Odhiambo Mbani-Deceased)
Applicant
Abdirizak Hillow Ibrahim
Defendant
Abdi Hassan Ali
Defendant
The Board of Trustees NSSF
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the applicant's failure to prosecute the suit can be excused due to the advocate's absence.
- 3 Whether the repeated applications for reinstatement amount to an abuse of court process.
Ratio Decidendi
The court found that the applicant had repeatedly failed to prosecute her suit and applications for reinstatement over a period exceeding five years. The court emphasized that it is the responsibility of the litigant to be diligent and in constant communication with their advocate regarding the status of their case. The applicant's attempt to file a fresh application to reinstate the suit, after previous applications were dismissed for want of prosecution, was deemed an abuse of the court process. The court held that the mistake of counsel could not excuse the applicant's prolonged indolence and lack of action. Consequently, the application for reinstatement was dismissed with costs to...
Court Disposition
application dismissed with costs to 3rd defendant; file closed
Orders
- The application dated 14.6.2023 is dismissed with costs to the 3rd defendant.
- Any other pending application is also dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
Odeny (Suing as the Legal Representative of the Estate of Micah Odhiambo Mbani-Deceased) v Ibrahim & 2 others (Environment & Land Case 778 of 2016) [2023] KEELC 20029 (KLR) (21 September 2023) (Ruling)
Neutral citation: [2023] KEELC 20029 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 778 of 2016
LN Mbugua, J
September 21, 2023
Between
Monica Auma Odeny (Suing as the Legal Representative of the Estate of Micah Odhiambo Mbani-Deceased)
Applicant
and
Abdirizak Hillow Ibrahim
1st Defendant
Abdi Hassan Ali
2nd Defendant
The Board of Trustees NSSF
3rd Defendant
Ruling
1. Before me is an application dated 14. 6.2023 seeking orders for reinstatement of the suit. The applicant/plaintiff contends that her advocate on record failed to attend court on several occasions, thus the mistake of her counsel should not be visited upon her.
2. The 3rd defendant opposed the application via grounds of opposition dated 21. 7.2023 where it is argued that the records of the court indicate that the applicant has consistently been indolent.
3. I have considered all the rival arguments. The issue for determination is whether this suit should be reinstated.
4. In the case of Mwangi Gachiengu & 2 others vs. Mwaura Githuku & Another[2019] eKLR it was stated that“it is trite law that a matter once filed in court does not belong to the litigant. It is the responsibility of the litigant to be in constant touch with his advocate on the position of the matter. Where a litigant goes to sleep after filing a suit, he cannot blame his advocate for having not updated him on the position of the matter, or when the matter is dismissed because it has not been prosecuted or fixed for prosecution….”
5. The records of the court indicate that this suit was dismissed for want of prosecution way back on 17. 1.2018. An application for reinstatement of the suit was only filed, 3 years later on 18. 1.2021 but was not prosecuted hence its dismissal half a year down the line on 14. 6.2021.
6. Another application dated 23. 6.2021 was filed to set aside the orders of 14. 6.2021. Vide a ruling of 27. 1.2022, the court allowed that application, therefore reviving the earlier application of 18. 1.2021 which was given a hearing date of 16. 2.2022. The said ruling was delivered in the presence of counsel for the plaintiff/applicant.
7. Come the date of 16. 2.2022 and there was no appearance for the plaintiff hence for a second time, the application dated 18. 1.2021 was dismissed.
8. The facts set out herein depict the applicant as an indolent litigant. His suit was dismissed more than 5 years ago on 17. 1.2018 and he cannot manage to prosecute his application for reinstatement of the suit dated 18. 1.2021. The filing of another application dated, 14. 6.2023 to bypass the status of that application of 18. 1.2021 is an abuse of the court process.
9. I find that the application dated 14. 6.2023 is not merited. The same is hereby dismissed with costs to 3rd defendant. Any other pending application is also hereby dismissed. The file is hereby marked as closed.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21st DAY OF SEPTEMBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGE