[2017] KEELC 456 (KLR)
The court found that the application to set aside the dismissal was filed without undue delay, was unopposed, and that the record showed no notice to show cause was served upon the plaintiff prior to dismissal. The absence of the plaintiff was not intentional. In the interests of justice and in line with the...
Source-derived case information.
- Citation
- [2017] KEELC 456 (KLR)
- Parties
- Plaintiff: Ole Rapanya Mitimbao; Defendant: Ntuu Kirionki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 327 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application allowed; dismissal order set aside; suit reinstated
- Judges
- MN Kullow
- Legal Topics
- Setting Aside Dismissal, Ex Parte Orders, Notice to Show Cause, Restoration of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ole Rapanya Mitimbao
Plaintiff
Ntuu Kirionki
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the plaintiff's suit should be set aside.
- 2 Whether the plaintiff was given notice to show cause before dismissal.
- 3 Whether the plaintiff's absence was intentional or excusable.
Ratio Decidendi
The court found that the application to set aside the dismissal was filed without undue delay, was unopposed, and that the record showed no notice to show cause was served upon the plaintiff prior to dismissal. The absence of the plaintiff was not intentional. In the interests of justice and in line with the overriding objectives of the Civil Procedure Act and the Constitution, the court allowed the application and set aside the dismissal order, restoring the suit for hearing.
Court Disposition
application allowed; dismissal order set aside; suit reinstated
Orders
- The application dated 8th November, 2017 is allowed.
- The order of dismissal dated 1st November, 2017 is set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 327 OF 2017
FORMERLY KISII ELC NO. 88 OF 2016
OLE RAPANYA MITIMBAO…….PLAINTIFF
-VERSUS-
NTUU KIRIONKI………………DEFENDANT
RULING
The Applicant has moved the court by way of a Notice of Motion dated 8th November, 2017 and brought under Article 159 of the constitution, section 1A, 1B of the Civil Procedure Act, Order 12 Rule 7 and under order 51 Rule 1 of the Civil Procedure Rules.
In the Application the Applicant seeks setting aside the order of the court dated 1st November, 2017 dismissing the Applicant’s suit NAROK ELC NO. 327 OF 2017. The Application is grounded on the basis that the Applicant was not aware that the suit herein was for hearing on the date it was dismissed and that the Plaintiff’s absence was unintentional and that he will suffer prejudice as he may lose.
I have read the Application before me and may I point out that the Application is unopposed as the same was not contested by the Respondents. Secondly, the Applicant had filed the same without undue delay and from the record I do observe that no Notice to Show Cause was served upon the plaintiff prior to the dismissal of the suit.
In view of the above I will allow the application dated 8th November, 2017 with no orders as to costs.
Dated, SignedandDeliveredin open court atNAROKon this 22ndday ofDecember, 2017
Mohammed Noor Kullow
Judge
In the presence of:-
Mr Langat holding brief for the plaintiff
N/A for the defendant
Mohammed Noor Kullow
Judge
22/12/17