[2024] KEELC 6446 (KLR)
The court found that although the applicant's explanation for non-attendance was unconvincing and likely due to counsel's absence, it would be unjust to visit the mistake of counsel upon the applicant. The court exercised its discretion to allow the application for reinstatement of the substitution application,...
Source-derived case information.
- Citation
- [2024] KEELC 6446 (KLR)
- Parties
- Applicant: Ongaro Orwaro; Respondent: Kitutu Chache North Constituency Development Fund Board; Respondent: The Kisii County Government; Respondent: The Board of Management Sieka (Dispensary) Health Centre
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Petition 4 of 2017
- Procedural Posture
- Environment and Land Petition / Ruling on Application to Set Aside Dismissal and Reinstate Substitution Application
- Outcome
- Application for reinstatement allowed subject to payment of thrown away costs.
- Judges
- M Sila
- Legal Topics
- Reinstatement of Suit, Abatement of Suit, Substitution of Parties, Non Attendance, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ongaro Orwaro
Applicant
Kitutu Chache North Constituency Development Fund Board
Respondent
The Kisii County Government
Respondent
The Board of Management Sieka (Dispensary) Health Centre
Respondent
Procedural Posture
Environment and Land Petition / Ruling on Application to Set Aside Dismissal and Reinstate Substitution Application
Legal Issues
- 1 Whether the dismissal of the substitution application for non-attendance should be set aside and the application reinstated.
- 2 Whether the mistake of counsel should be visited upon the applicant.
- 3 Whether the suit has abated and if time for revival has been sought.
Ratio Decidendi
The court found that although the applicant's explanation for non-attendance was unconvincing and likely due to counsel's absence, it would be unjust to visit the mistake of counsel upon the applicant. The court exercised its discretion to allow the application for reinstatement of the substitution application, subject to the applicant paying thrown away costs to the 2nd and 3rd respondents within 14 days. Failure to pay would result in the application standing dismissed. The court emphasized the importance of giving parties an opportunity to be heard on the merits, especially where procedural lapses are attributable to counsel rather than the litigant.
Court Disposition
Application for reinstatement allowed subject to payment of thrown away costs.
Orders
- The application for reinstatement is allowed.
- The applicant shall pay thrown away costs of Kshs. 5,000 to the 2nd and 3rd respondents within 14 days.
Full Case Text
Judgment text and source record
26 paragraphs
Orwaro v Kitutu Chache North Constituency Development Fund Board & 2 others (Environment & Land Petition 4 of 2017) [2024] KEELC 6446 (KLR) (3 October 2024) (Ruling)
Neutral citation: [2024] KEELC 6446 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Environment & Land Petition 4 of 2017
M Sila, J
October 3, 2024
Between
Ongaro Orwaro
Petitioner
and
Kitutu Chache North Constituency Development Fund Board
1st Respondent
The Kisii County Government
2nd Respondent
The Board of Management Sieka (Dispensary) Health Centre
3rd Respondent
Ruling
1. The application before me is that dated 25 January 2024 filed by the petitioner. He seeks to have orders made on 16 November 2023, which dismissed his application dated 10 August 2023, set aside so that the application dated 10 August 2023 can be heard on merits. The application is opposed.
2. To put matters into context, this suit was commenced through a petition filed on 4 April 2017. The applicant contended to be the owner of the land parcel West Kitutu Chache/Mwakibagendi/ 3240. He complained that the respondents took possession of his land and put up a health facility known as Sieka Dispensary without regard to his rights. In the petition he sought a declaration of rights over the suit property, a permanent injunction to restrain the respondents from the suit land, damages and mesne profits. The petitioner died on 27 June 2022 before the suit could be heard and through an application dated 10 August 2023 an application for his substitution was filed. The application was fixed for hearing on 16 November 2023. On that day, an unidentified person who could not have been counsel, appeared in the online platform and stated that counsel has asked for the file to be placed aside. Despite the irregularity of not having counsel present to hold brief, I was gracious enough to place the file aside. I called it out at 9. 55am and there was no response and I proceeded to dismiss it for non-attendance.
3. In the supporting affidavit to the application, sworn by Patrick Nyougo Ongaro, the administrator of the estate of the deceased petitioner, it is deposed that he was in the office of his advocate M/s P.K Njiiri & Company when the file was called out and placed aside. He deposes that he expected Mr. Kariuki Njiiri to be in the office on time to handle the matter but before the court completed its causelist at around noon, they started experiencing poor network and that by the time the matter was called out they could not log in. He deposes that his advocate informed him that he would check on the matter. He continues to depose that on 16 January 2024 his advocate called him and informed him that they need to file an application, for his application for substitution was dismissed for non-attendance. He now pleads with the court to allow his application.
4. The 2nd & 3rd respondents filed Grounds of Opposition. Inter alia it is urged that the suit has already abated and not time has been sought for its revival.
5. I have considered the application. I am not entirely convinced on the depositions in the affidavit of the applicant. He seems to suggest that the court continued mentioning cases up to noon by which time his matter had not yet been called out and they suffered network challenges thereafter. The fact of the matter is that the file was dealt with at 9. 55am and there was nobody to attend to it. I think counsel was simply absent on that day and was nowhere to attend to the application otherwise he would have prosecuted it when it was first called out and a person from his office made the call for the file to be placed aside. I have already said that the person did not introduce himself/herself and was certainly not an advocate holding brief. I think Mr. Njiiri can do much better and I better not say much more.
6. It appears to me that the applicant was let down by his counsel. I do not wish to have the mistake of counsel visited on him and I will allow the application for reinstatement but subject to payment of thrown away costs of Kshs. 5,000/= payable in 14 days to the 2nd & 3rd respondents. In default of payment of the thrown away costs the application dated 10 August 2023 will stand dismissed.
7. Orders accordingly.
DATED AND DELIVERED THIS 3RD DAY OF OCTOBER 2024JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT KISIIDelivered in the presence of:Ms. Wanjiku h/b for Mr. Kariuki for the petitionerMr. Oirere for the 2nd & 3rd respondentsN/A for the 1st respondentCourt Assistant – David Ochieng’