[2019] KEELC 4833 (KLR)
The court found that the plaintiff's failure to prosecute the suit was not deliberate but was occasioned by circumstances beyond his control, including his own ill health and the death of his former advocate. The court accepted that the plaintiff was not personally served with the notice to show cause and had...
Source-derived case information.
- Citation
- [2019] KEELC 4833 (KLR)
- Parties
- Plaintiff: Paul Wanjala Makokha; Defendant: Tito Khakina; Defendant: Albert Mukanda
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 28 of 2011
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application granted; suit reinstated.
- Judges
- FM Njoroge
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Prosecution, Mistake of Counsel, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Wanjala Makokha
Plaintiff
Tito Khakina
Defendant
Albert Mukanda
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the orders dismissing the plaintiff's suit should be set aside.
- 2 Whether the plaintiff's suit should be reinstated after dismissal for non-prosecution.
- 3 Whether the plaintiff should suffer for the mistakes of his former counsel.
Ratio Decidendi
The court found that the plaintiff's failure to prosecute the suit was not deliberate but was occasioned by circumstances beyond his control, including his own ill health and the death of his former advocate. The court accepted that the plaintiff was not personally served with the notice to show cause and had demonstrated sufficient cause for the court to exercise its discretion in his favor. The application was unopposed, and the court was satisfied that the interests of justice required the setting aside of the dismissal order and the reinstatement of the suit for hearing on its merits.
Court Disposition
Application granted; suit reinstated.
Orders
- The orders made on 4/10/2017 dismissing the plaintiff’s suit and all consequential orders are set aside.
- The plaintiff’s suit is reinstated.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 28 OF 2011
PAUL WANJALA MAKOKHA............PLAINTIFF
VERSUS
TITO KHAKINA.........................1ST DEFENDANT
ALBERT MUKANDA................2ND DEFENDANT
R U L I N G
1. The application dated 18/10/2018 and filed in court on 19/10/2018 has been brought by the plaintiff. It seeks an order that the orders made on 4/10/2017 dismissing the plaintiff’s suit and all other consequential orders be set aside and that the plaintiff’s suit be reinstated. The application is not opposed.
2. The application is supported by the sworn affidavit of the plaintiff dated 18th October 2018.
3. The grounds upon which the application is made are contained in that affidavit and at the foot of the application. In brief they are that the failure to prosecute the matter was not deliberate; that the plaintiff’s erstwhile advocate’s health and also the plaintiff’s health deteriorated; that due to his arthritic condition the plaintiff could not get in touch with his advocate; that he only came to learn in 2017 that his advocate had passed on in 2015; that it has taken him time to trace the former employees of his former advocate’s firm; that the court file could not be traced with ease as it had been taken to the archives section; that he was not personally served with the notice to show cause and that he should not be made to suffer for the mistakes of counsel on the record. He maintains that he has an arguable case.
4. I have examined the unopposed application and found that there is merit in what the plaintiff states and for that reason I grant the application as prayed. This suit shall however be given a priority hearing date immediately after this ruling is delivered.
Dated, signed and delivered at Kitale on this 31st day of January, 2019.
MWANGI NJOROGE
JUDGE
31/01/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Bisonga for the plaintiff
N/A for the defendants
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
31/01/2019