[2023] KEELC 15823 (KLR)
The court found that the applicant's absence, due to his counsel's illness, constituted sufficient cause for non-attendance on the date the suit was dismissed. The right to be heard and access to justice are fundamental principles that require the suit to be determined on its merits rather than dismissed for...
Source-derived case information.
- Citation
- [2023] KEELC 15823 (KLR)
- Parties
- Plaintiff: Joseph Onyango Ogosi; Defendant: Cornel Akacha Gworo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2022
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed; suit reinstated for hearing on merits
- Judges
- GMA Ongondo
- Legal Topics
- Setting Aside Dismissal, Reinstatement of Suit, Right to Be Heard, Fair Hearing, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Onyango Ogosi
Plaintiff
Cornel Akacha Gworo
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit should be set aside and the suit reinstated for hearing on merit.
- 2 Whether the absence of the applicant and his counsel constituted sufficient cause for non-attendance.
- 3 Whether the right to be heard and access to justice warrant reinstatement of the suit.
Ratio Decidendi
The court found that the applicant's absence, due to his counsel's illness, constituted sufficient cause for non-attendance on the date the suit was dismissed. The right to be heard and access to justice are fundamental principles that require the suit to be determined on its merits rather than dismissed for procedural default. The respondent did not oppose the application, and the court exercised its discretion to set aside the dismissal and reinstate the suit, holding that the applicant should not be penalized for his counsel's indisposition. The court emphasized that justice is best served by allowing the matter to proceed to hearing.
Court Disposition
application allowed; suit reinstated for hearing on merits
Orders
- The orders of dismissal made on December 17, 2018 are set aside.
- The suit is reinstated for hearing on merit.
Full Case Text
Judgment text and source record
31 paragraphs
Ogosi v Gworo (Environment & Land Case 5 of 2022) [2023] KEELC 15823 (KLR) (28 February 2023) (Ruling)
Neutral citation: [2023] KEELC 15823 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Case 5 of 2022
GMA Ongondo, J
February 28, 2023
Between
Joseph Onyango Ogosi
Plaintiff
and
Cornel Akacha Gworo
Defendant
Ruling
1. In an application by way of a notice of motion dated March 7, 2022 and duly filed in court on March 9, 2022 under, inter alia, order 10 rule 11 and order 12 rule 11 of the Civil Procedure Rules, 2010, the plaintiff/applicant through the firm of SM Sagwe and Company Advocates, is seeking the following orders;a.Spentb.That the hon court be pleased to set aside orders of dismissal made on December 17, 2018 and reinstate the suit for hearing on merit.c.That upon granting prayer (b) above the suit be fixed for hearing on merit.
2. The application is premised on seven grounds set out on the face of the same alongside the applicant’s affidavit of ten paragraphs sworn on even date. In a nutshell, the applicant’s complaint is that the suit was dismissed on March 17, 2018 in the absence of his counsel and himself as revealed in the court proceedings (J OO 2). That during the time, his counsel was sick with a swollen leg as demonstrated in the treatment chits and photograph (JOO 1a and b) herein. That he came to learn about the dismissal order when the respondent intended to sell the suit land and that the orders sought in the application are not prejudicial to the respondent.
3. The respondent was served with the application as discerned in EMS Kenya World Wide Courier shipment waybill number xxxx of February 22, 2022, among others. He had the option to appear and respond to the application and failed to do so; see also Ogada v Mollin [2009] KLR 620.
4. On March 9, 2022, the court directed that the application be heard by written submissions.
5. Consequently, the applicant’s counsel filed submissions dated October 21, 2022 making reference to the prayers in the application and implored the court to grant the same. It was submitted that SM Sagwe, learned counsel for the applicant was indisposed as per the photograph attached to the submissions thus, his absence from court which led to the dismissal of the suit. Counsel relied on Kihuyu Ndirangu v Reuben Kinyanjui [2003] eKLR and Trade Circles Ltd v Family Bank Ltd and another [2021] eKLR, to buttress the submissions.
6. The respondent’s counsel failed to file submissions in the application.
7. I have carefully considered the entire application and the submissions on record herein. Therefore, is the application meritorious?
8. The instant suit was dismissed under order 17 rule 2 (1) of the Civil Procedure Rules, 2010 on December 17, 2018.
9. It is trite law that the right to be heard before an adverse decision is made against a party is fundamental and permeates the entire justice system; see James Kanyiita Nderitu and another v Marios Philotas Ghikas [2016] eKLR.
10. Furthermore, the applicant has the right of access to justice and unlimited right to fair hearing of the suit as provided for under articles 48, 50 (1) and 25 (c) of theConstitution of Kenya, 2010. This court has the discretion to reinstate suit under order 17 rule 2 (2) of the Civil Procedure Rules, 2010. The same calls for hearing on merits.
11. This court has the discretion to reinstate suit under order 17 rule 2 (2) of the Civil Procedure Rules, 2010. The applicant cannot be condemned at the alter of his counsel’s indisposition. The suit calls for hearing on merits.
12. Sections 1A, 1B, 3 and 3A of the Civil Procedure Rules, 2010 govern overriding objective, inherent jurisdiction and special powers of the court.
13. So, I find the application unopposed, cogent and merited.
14. Wherefore, the application is hereby allowed in terms of orders sought therein as stated in paragraph 1 (b) and (c) hereinabove.
15. Costs of the application be in the cause.
16. It is so ordered.
DATED AND DELIVERED AT HOMA BAY THIS 28TH DAY OF FEBRUARY 2023. G.M. A ONGONDOJUDGEPRESENTa. Defendant in personb. Mutiva, Court Assistant.