[2023] KEELC 22039 (KLR)
The court found that although the plaintiff's explanation for his counsel's absence on 19/12/2022 was not entirely convincing, the right to be heard is a fundamental principle of justice enshrined in Article 50(1) of the Constitution. The court held that it would be unfair to deny the plaintiff a hearing for...
Source-derived case information.
- Citation
- [2023] KEELC 22039 (KLR)
- Parties
- Plaintiff: Aggrey Ogutu; Defendant: Daniel Kamau Mwangi; Defendant: County Government of Kajiado; Defendant: Rose Waithera Mwangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 7 of 2018
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal Order
- Outcome
- Application allowed with conditions.
- Judges
- MN Gicheru
- Legal Topics
- Setting Aside Orders, Right to Be Heard, Dismissal for Non Attendance, Fair Hearing, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aggrey Ogutu
Plaintiff
Daniel Kamau Mwangi
Defendant
County Government of Kajiado
Defendant
Rose Waithera Mwangi
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the plaintiff's suit for non-attendance should be set aside.
- 2 Whether the plaintiff's explanation for non-attendance is sufficient to warrant reinstatement of the suit.
- 3 Whether the right to be heard under Article 50(1) of the Constitution was violated.
Ratio Decidendi
The court found that although the plaintiff's explanation for his counsel's absence on 19/12/2022 was not entirely convincing, the right to be heard is a fundamental principle of justice enshrined in Article 50(1) of the Constitution. The court held that it would be unfair to deny the plaintiff a hearing for failures that are excusable, especially where the defendants would not suffer great prejudice and could recover costs. Accordingly, the court exercised its discretion to set aside the dismissal order on condition that the plaintiff pays thrown away costs and that the case be concluded within one year.
Court Disposition
Application allowed with conditions.
Orders
- The order dismissing the plaintiff's suit for non-attendance is set aside.
- The plaintiff shall pay thrown away costs to the defendants, to be taxed if not agreed.
Full Case Text
Judgment text and source record
23 paragraphs
Ogutu v Mwangi & 2 others (Environment & Land Case 7 of 2018) [2023] KEELC 22039 (KLR) (6 December 2023) (Ruling)
Neutral citation: [2023] KEELC 22039 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 7 of 2018
MN Gicheru, J
December 6, 2023
Between
Aggrey Ogutu
Plaintiff
and
Daniel Kamau Mwangi
1st Defendant
County Government of Kajiado
2nd Defendant
Rose Waithera Mwangi
3rd Defendant
Ruling
1. This ruling is on the notice of motion dated 27/2/2023. The motion which is by the Plaintiff is brought under orders 12 rule 7, 51 rule 1 Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law. It seeks the setting aside of the order made on 9/2/2023 dismissing the plaintiff’s suit for his non attendance as well as the non attendance of his counsel.
2. The motion is based on four grounds and is supported by an affidavit sworn by Gorrety A. Otieno, the plaintiff’s counsel, dated 27/2/2023 which has three (3) annexures. In summary, the applicant is saying that his advocate failed to attend court on 9/2/2023 firstly because she was unwell in hospital and secondly because she was not aware of the hearing date which had been taken in her absence on 19/12/2022. He craves to be heard.
3. The motion is opposed by the defendants and the third defendant has sworn a replying affidavit dated 1/3/2023 in which she deposes that the plaintiff has not been keen in prosecuting this case and he has no explanation to give for his counsel’s absence on 19/12/2022 since the date had been taken by consent on 26/6/2022 in her presence.
4. I have carefully considered the motion in its entirety including the grounds, the affidavits, the annexures and the entire record. Even though the plaintiff is not convincing on his counsel’s failure to appear in court on 19/12/2022 since the date had been taken by consent in her presence and has also not come clean on the issue of service of the hearing notice via email, I find that it is fair and just to allow the motion for two reasons.Firstly, it is not fair to condemn a party unheard for failures that are excusable. The right to be heard is paramount and it is one of the ingredients of a fair hearing as enshrined in Article 50(1) of the Constitution.Secondly, the defendants will not suffer great prejudice and the costs incurred can be recovered from the plaintiff.For the above stated reasons, I allow the motion dated 27/2/2023 on two conditions. The first one is that the plaintiff pays thrown away costs which will be taxed if not agreed.Secondly, the case be concluded in the next one (1) year.It is so ordered.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 6TH DAY OF DECEMBER 2023. M.N. GICHERUJUDGE