[2014] KEELC 93 (KLR)
The court found that on the date the Defendant's counterclaim was dismissed for want of prosecution and non-attendance, the matter scheduled for hearing was the Plaintiff's advocate's application to cease acting, not the counterclaim itself. Therefore, the Defendant or his advocate was not obliged to attend court...
Source-derived case information.
- Citation
- [2014] KEELC 93 (KLR)
- Parties
- Plaintiff: Ornato Orzazio; Defendant: Benard Baya Mwaro
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal of Counterclaim
- Outcome
- Defendant's application to set aside the dismissal of the counterclaim allowed.
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Counterclaim Reinstatement, Non Attendance, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ornato Orzazio
Plaintiff
Benard Baya Mwaro
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal of Counterclaim
Legal Issues
- 1 Whether the dismissal of the Defendant's counterclaim for want of prosecution and non-attendance was proper in the circumstances.
- 2 Whether the Defendant's application to set aside the dismissal of the counterclaim should be allowed.
Ratio Decidendi
The court found that on the date the Defendant's counterclaim was dismissed for want of prosecution and non-attendance, the matter scheduled for hearing was the Plaintiff's advocate's application to cease acting, not the counterclaim itself. Therefore, the Defendant or his advocate was not obliged to attend court for the counterclaim on that day. The court acknowledged its error in dismissing the counterclaim instead of the Plaintiff's application. Consequently, the court allowed the Defendant's application to set aside the dismissal, reinstated the counterclaim, and directed the Defendant to set down the Plaintiff's application for hearing, followed by the counterclaim.
Court Disposition
Defendant's application to set aside the dismissal of the counterclaim allowed.
Orders
- The Defendant's application dated 3rd September 2014 is allowed as prayed.
- The Defendant is directed to set down the Plaintiff's Application dated 28th March 2012 for hearing and thereafter the Counterclaim.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 5 OF 2004
ORNATO ORZAZIO..........................................PLAINTIFF/RESPONDENT
=VERSUS=
BENARD BAYA MWARO...................................DEFENDANT/APPLICANT
R U L I N G
Introduction:
The Plaintiff's suit was dismissed by Omondi J on 17th May 2011. On the same day, the Judge proceeded to hear the Defendant's counter claim. However the Defendant never closed his case.
This matter was fixed for hearing on 24th September, 2013 and 2nd December 2013, on which days both the Plaintiff and the Defendant were not in court.
On 2nd December 2013, this court, on its own motion, dismissed the Defendant's counter claim for want of prosecution and non-attendance.
The Defendant's advocate has now filed an application dated 3rd September 2014 in which he is seeking to have my Ruling dismissing the counterclaim set aside on the ground that the Defendant is still willing to prosecute his counterclaim.
I have noted that on 2nd December 2013, what was coming up was the hearing of the Plaintiff's advocate’s application to cease acting for the Plaintiff and not the hearing of the counter claim.
In the circumstances, the Defendant or even his advocate was not obliged to be in court on that day. I should have dismissed the Plaintiff’s Application dated 20th March, 2012 and not the Counter claim.
In the circumstances, I allow the Defendant's application dated 3rd September 2014 as prayed.
The Defendant is hereby directed to set down the Plaintiff's Application dated 28th March 2012 for hearing and thereafter the Counter claim.
Dated and delivered in Malindi this 7th day of November,2014.
O. A. Angote
Judge