[2023] KEELC 384 (KLR)
The court declined to render a ruling on the application to set aside the dismissal and reinstate the suit because the respondent and his counsel had not been properly notified of the application or the hearing date. The court emphasized that the principles of fair hearing and access to justice require that all...
Source-derived case information.
- Citation
- [2023] KEELC 384 (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 / Interlocutory Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Ruling on the application deferred; new date fixed for ruling after proper notification to parties.
- Judges
- GMA Ongondo
- Legal Topics
- Reinstatement of Suit, Right to Be Heard, Service of Process, Dismissal Orders
- 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 / Interlocutory Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the respondent was properly notified of the application and hearing date.
- 2 Whether the court can proceed to rule on the application in the absence of notification to the respondent.
- 3 Whether the principles of fair hearing and access to justice require service and opportunity to be heard before determination.
Ratio Decidendi
The court declined to render a ruling on the application to set aside the dismissal and reinstate the suit because the respondent and his counsel had not been properly notified of the application or the hearing date. The court emphasized that the principles of fair hearing and access to justice require that all parties be served and given an opportunity to be heard before any determination is made. Accordingly, the ruling on the application was deferred and a new date fixed, with directions for the Deputy Registrar to notify counsel for both parties using the fastest and most convenient means, including email.
Court Disposition
Ruling on the application deferred; new date fixed for ruling after proper notification to parties.
Orders
- Ruling on the application is fixed for February 28, 2023.
- Deputy Registrar to notify counsel for the respective parties via email or any other fastest and convenient method.
Full Case Text
Judgment text and source record
26 paragraphs
Ogosi v Gworo (Environment & Land Case 5 of 2022) [2023] KEELC 384 (KLR) (30 January 2023) (Ruling)
Neutral citation: [2023] KEELC 384 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Case 5 of 2022
GMA Ongondo, J
January 30, 2023
(MIGORI ELCC NO. 489 OF 2017)
Between
Joseph Onyango Ogosi
Plaintiff
and
Cornel Akacha Gworo
Defendant
Ruling
1. The instant ruling relates to issuance of ruling notice regarding a Notice of motion dated March 7, 2022 duly filed in court on March 9, 2022 (Hereinafter referred to as the application). One Joseph Onyango Ogosi, the plaintiff/applicant through the firm of Sagwe and Company Advocates, is seeking, among other orders, to set aside this court’s orders of dismissal of this suit made on December 17, 2018 and that the suit be reinstated for hearing on merit.
2. Notably, learned counsel for the applicant filed submissions dated October 21, 2022 concerning the application pursuant to the court’s orders of March 9, 2022.
3. Besides, the court is not in a position to render a ruling in respect of the application on this date for reasons necessary for the ends of justice as stated hereunder.
4. Interestingly, neither the respondent nor his counsel is captured in the notice of October 14, 2022 at 03. 12 PM GMT+3 issued by the Honourable Deputy Registrar of this court. Therefore, the respondent’s counsel has not been notified of this matter inclusive of this date.
5. It is trite that the court has the duty to ensure that the respondent is made aware of the existence of the matter in question and to have the respondent served with all the relevant papers. In that regard, the respondent has the right to appear and respond to the application or decline to do so; see Ogada-versus-Mollin (2009) KLR 620.
6. It must be borne in mind that a fair opportunity to be heard is a fundamental principle of justice; see Halsbury’s Laws of England 5th Edition 2010 Volume 61 paragraph 639.
7. No doubt, both parties in this application are entitled to access justice as provided for under Article 48 of the Constitution of Kenya, 2010. Furthermore, the parties have the unlimited right to be heard in the application under Articles 25 (c) and 50 (1) of the same Constitution.
8. Wherefore, ruling in respect of the application is fixed for February 28, 2023.
9. The Deputy Registrar of this Court to notify counsel for the respective parties accordingly. For clarity, notice be effected at least, via email herein and or any other fastest and convenient method.
10. It is so ordered.
DATED AND DELIVERED AT HOMA BAY THIS 30TH DAY OF JANUARY, 2023. G. M. A ONG’ONDOJUDGEPresent1. Parties –Absent2. Terence, Court Assistant.