[2023] KEELC 581 (KLR)
The court found that the applicant had provided a convincing explanation for both the failure to file an affidavit explaining non-prosecution and the failure to attend court on the date the suit was dismissed. The applicant's deployment as a police officer in a security operation, coupled with Covid-19 restrictions,...
Source-derived case information.
- Citation
- [2023] KEELC 581 (KLR)
- Parties
- Plaintiff: Paul Olenachuru; Defendant: Juma Leperesian; Defendant: Arupe Lechingei; Respondent: Dalvin Lesurtali Koipiri; Defendant: Francis Olekipiri; Defendant: Mmbaitsi Evaristus; Defendant: National Land Commission
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 326 of 2014
- Procedural Posture
- Notice of Motion / Application for Reinstatement After Dismissal for Want of Prosecution
- Outcome
- Application allowed; suit reinstated and transferred to Iten E&L Court.
- Judges
- EO Obaga
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Affidavit Evidence, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Olenachuru
Plaintiff
Juma Leperesian
Defendant
Arupe Lechingei
Defendant
Dalvin Lesurtali Koipiri
Respondent
Francis Olekipiri
Defendant
Mmbaitsi Evaristus
Defendant
National Land Commission
Defendant
Procedural Posture
Notice of Motion / Application for Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for failure to prosecute the suit and non-attendance on the date of dismissal.
- 2 Whether the order dismissing the suit for want of prosecution should be set aside and the suit reinstated.
Ratio Decidendi
The court found that the applicant had provided a convincing explanation for both the failure to file an affidavit explaining non-prosecution and the failure to attend court on the date the suit was dismissed. The applicant's deployment as a police officer in a security operation, coupled with Covid-19 restrictions, constituted sufficient cause. The court emphasized the importance of hearing land cases on their merits and exercised its discretion to set aside the dismissal order. The suit was reinstated and transferred to the appropriate court with jurisdiction over the subject matter.
Court Disposition
Application allowed; suit reinstated and transferred to Iten E&L Court.
Orders
- The order of 9th February, 2022 dismissing the suit is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
32 paragraphs
Olenachuru v Leperesian & 5 others (Environment & Land Case 326 of 2014) [2023] KEELC 581 (KLR) (9 February 2023) (Ruling)
Neutral citation: [2023] KEELC 581 (KLR)
Republic of Kenya
In the Environment and Land Court at Eldoret
Environment & Land Case 326 of 2014
EO Obaga, J
February 9, 2023
Between
Paul Olenachuru
Plaintiff
and
Juma Leperesian
1st Defendant
Arupe Lechingei
2nd Defendant
and
Dalvin Lesurtali Koipiri
Respondent
and
Francis Olekipiri
1st Defendant
Mmbaitsi Evaristus
2nd Defendant
National Land Commission
3rd Defendant
Ruling
1. This is a ruling in respect of a notice of motion dated 14th June, 2022 in which the Plaintiff/Applicant seeks reinstatement of this suit which was dismissed on 9th February, 2022 for failure on the part of the Applicant to show cause why the same should not be dismissed for want of prosecution.
2. This suit had been listed for Notice to show cause why the same should not be dismissed for want of prosecution. The Notice to show cause was listed on 15th November, 2021. Come that date, the counsel for the Applicant asked for time to put in an affidavit explaining why the suit had not been prosecuted. The Applicant was given 14 days to file the affidavit explaining why the suit was not being prosecuted. The matter was fixed for mention on 9th February, 2022.
3. On 9th February, 2022, there was no appearance by Applicant’s counsel and no affidavit had been filed explaining non prosecution of the suit. The court proceeded to dismiss the suit for want of prosecution.
4. The Applicant contends that his lawyers were unable to log in to the online court session in time and that after they successfully logged in, the case had been called out and the same dismissed. The Applicant states that he is a Police officer who had been deployed to Trans-Mara area where there were security issues and as such, he was unable to instruct his lawyers in time. He annexed an affidavit explaining why he could not prosecute his case. One of the reasons is the nature of his work and that there was Covid 19 pandemic which caused imposition of restriction of movement.
5. The Applicant’s application was opposed by the 5th Defendant/Respondent based on a replying affidavit sworn on 20th September, 2022. I have considered the Applicant’s application as well as the opposition to the same by the 5th Respondent. I have also considered the submissions by the Applicant. I am convinced with the explanation given as to why the affidavit explaining non prosecution was not filed and the failure to attend court on 9th February, 2022. In as much as possible, land cases have to be heard on merit. It is for this reason that I allow the application dated 14th June, 2022 with the result that the order of 9th February, 2022 dismissing the Applicant’s suit is hereby set aside. The suit is reinstated for hearing. As the subject matter is in Baringo County, the Court with jurisdiction to hear cases from that area is Iten E&L court. This suit is therefore transferred to Iten. The costs of this application shall be in the cause.It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 9TH DAY OF FEBRUARY, 2023. E. O. OBAGAJUDGEIn the virtual presence of;Ms. Martin for Mr. Arusei for Applicant.Court Assistant –LabanE. O. OBAGAJUDGE9TH FEBRUARY, 2023