[2025] KEELC 3923 (KLR)
The court found that the applicant's advocate was absent due to bereavement, a fact that was communicated in advance and supported by documentary evidence. The respondent did not challenge these facts by way of a replying affidavit. The court held that the absence of the advocate was excusable and that the mistake...
Source-derived case information.
- Citation
- [2025] KEELC 3923 (KLR)
- Parties
- Plaintiff: Joshua Mwembi Omweri; Defendant: Peter Tukero; Defendant: District Land Registrar, Transmara West
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kilgoris
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 6 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application allowed; suit reinstated.
- Judges
- MN Mwanyale
- Legal Topics
- Setting Aside Orders, Dismissal for Want of Prosecution, Reinstatement of Suit, Advocate Absence, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Mwembi Omweri
Plaintiff
Peter Tukero
Defendant
District Land Registrar, Transmara West
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the application to set aside the dismissal order for want of prosecution is merited.
- 2 Whether the absence of the plaintiff's advocate due to bereavement constitutes sufficient cause to reinstate the suit.
Ratio Decidendi
The court found that the applicant's advocate was absent due to bereavement, a fact that was communicated in advance and supported by documentary evidence. The respondent did not challenge these facts by way of a replying affidavit. The court held that the absence of the advocate was excusable and that the mistake should not be visited upon the litigant, who was present in court with witnesses. Consequently, the court exercised its discretion to set aside the dismissal order and reinstate the suit for hearing, finding that sufficient cause had been demonstrated.
Court Disposition
Application allowed; suit reinstated.
Orders
- The orders issued on 19.12.2024 dismissing the suit are set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
26 paragraphs
Omweri v Tukero & another (Environment & Land Case 6 of 2023) [2025] KEELC 3923 (KLR) (15 May 2025) (Ruling)
Neutral citation: [2025] KEELC 3923 (KLR)
Republic of Kenya
In the Environment and Land Court at Kilgoris
Environment & Land Case 6 of 2023
MN Mwanyale, J
May 15, 2025
Between
Joshua Mwembi Omweri
Plaintiff
and
Peter Tukero
1st Defendant
District Land Registrar, Transmara West
2nd Defendant
Ruling
1. Upon consideration of the Application dated 31. 12. 2024 seeking setting aside of the orders issued on 19. 12. 2024 dismissing the suit for want of prosecution which application is premised on the grounds that the plaintiff was present in court with three witnesses and that this counsel Mr. Ombachi was absent but his brief was held by Mr. Migiro Advocate, and the absence of Mr. Ombachi was due to the fact that he was bereaved, and the parties were not called out.
2. Upon further consideration of the affidavit in support of the application and the annextures thereto including the proceedings of the said date and a funeral programme in respect of the late Amos Michieka showing that the cortege left the Lenmek mortuary on 19. 12. 2024, as well as a letter dated 11. 12. 2024 communicating the bereavement of Mr. Ombachi Advocate
3. Upon consideration of the grounds of opposition by the 1st Respondent, and the submissions by the parties together with the authorities cited in support and in opposition to the application.
4. The court considers the issue for determination, is whether or not the application is merited.
5. The Applicant having deponed on the reasons for not proceeding with the matter on the dated to matter was slated for hearing, the Respondent has not challenged the depositions by way of a Replying affidavit by filed grounds of opposition.
6. The depositions are not challenged and the court finds that the Applicant Advocate was indeed bereaved and had communicated the bereavement early to his counterparts, and that on the hearing date, the Applicant was involved in the burial programme, the court is convinced that the Applicant has made out as strong case for the court to review its orders dismissing this suit, as the mistakes of Advocates ought not to be visited the litigant, who in this case was said to be present in court.
7. Accordingly, the orders issued on 19. 12. 2024 are hereby set aside and this suit is reinstated for hearing.
8. Directions on the pre-trial conference shall be issued on 4th June 2025.
9. Costs in the cause.
DATED AT KILGORIS THIS 15TH DAY OF MAY, 2025. HON. M.N MWANYALEJUDGEIn the presence ofCA – Emmanuel/SylviaMr. Ombachi for the Applicant/ ApplicantN/a for Mr. Onchwangi for the 1st Respondent.Mr. Wabwire for the 2nd Respondent.