[2019] KEELC 4384 (KLR)
The court found that the applicants' advocate was present in court on the dates when the matter was set for filing submissions and when the judgment date was fixed, as well as when judgment was delivered. The claim that the advocate was not served with hearing dates was therefore unfounded. The court held that the...
Source-derived case information.
- Citation
- [2019] KEELC 4384 (KLR)
- Parties
- Appellant: Patrick N. Machika; Respondent: Benardo Likhako Makhuyi; Respondent: Bonface Likobe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside or Review Judgment
- Outcome
- application dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Setting Aside Judgment, Review of Judgment, Service of Process, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick N. Machika
Appellant
Benardo Likhako Makhuyi
Respondent
Bonface Likobe
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside or Review Judgment
Legal Issues
- 1 Whether the judgment delivered on 20th June 2018 should be set aside or reviewed due to alleged lack of service on the applicants or their advocates.
- 2 Whether there was an error apparent on the face of the record justifying review of the judgment.
- 3 Whether the application amounts to an abuse of the court process.
Ratio Decidendi
The court found that the applicants' advocate was present in court on the dates when the matter was set for filing submissions and when the judgment date was fixed, as well as when judgment was delivered. The claim that the advocate was not served with hearing dates was therefore unfounded. The court held that the application to set aside or review the judgment was not merited, as there was no error apparent on the face of the record and no denial of the right to be heard. The application was deemed an abuse of the court process and was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application to set aside or review the judgment dated 20th June 2018 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC APPEAL NO. 12 OF 2017
PATRICK N. MACHIKA...................................APPELLANT
VERSUS
BENARDO LIKHAKO MAKHUYI
BONFACE LIKOBE...................................RESPONDENTS
RULING
The application is dated 30th October 2018 and brought under order 10 rule 11 and order 45 rule I of the Civil Procedure Rules seeking the following orders;
1. That the judgment delivered on 20th day of June, 2018 be set aside and/or be varied on terms the court may deem just.
2. That in the alternative and without prejudice to prayer (i) above the judgement dated 20th June, 2018 be reviewed to the extent that the respondents are heard before judgment is delivered.
It is based on the grounds that, neither the applicants nor their advocates were served for the hearing of the appeal. That given the applicants had a lawyer on record, then proper service could only be effected on their lawyers then on record. That there is an error apparent on the record of the proceeding which culminated to the judgment dated 20/6/2018.
This court has considered the application and the submissions therein. The application is based on the grounds that the matter was heard, determined and judgment was delivered without the applicants being heard. That the hearing date for the matter was not served upon the applicant’s advocate. There is a mistake occasioned which is apparent in the face of the record. I have perused the court file. On the 7th February 2018 Mr. Momanyi for the respondent was present when the date of 15th May 2018 was given by the court for filing of written submissions. On the 15th May 2018 Mr. Manyoni holding brief for Mr. Momanyi requested for more time to file written submissions for the respondent and the court granted the request and set the matter for judgement on the 20th June 2018. Mr. Manyoni holding brief for Mr. Momanyi was again present when judgement was delivered on the 20th June 2018. It is strange that the advocate now says he was not served with the hearing dates which culminated to the judgement. This application is indeed an abuse of the court process.
The decision on whether the suit should be reinstated for trial is a matter of justice and it depends on the facts of the case. In Ivita v Kyumbu (1984) KLR 441, Chesoni J as he then was, stated that the test is whether the delay is prolonged and inexcusable and if justice will be done despite the delay. Justice is justice for both the plaintiff and the defendant. I find that this application is not merited and I dismiss it with costs.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 26TH DAY OF FEBRUARY 2019.
N.A. MATHEKA
JUDGE