[2019] KEELC 564 (KLR)
The court found that the Plaintiffs. advocate had been served with the Notice to show cause only on the evening before the hearing and made reasonable efforts to attend court, arriving shortly after the matter was called out and dismissed. Given the advocate's prompt action and the absence of opposition from the...
Source-derived case information.
- Citation
- [2019] KEELC 564 (KLR)
- Parties
- Plaintiff: Penina Monica Mutungi; Plaintiff: Mercy Ndanu Mutungi; Defendant: Nicholas Nyamweya Nyariki; Defendant: Nyamweya Maxwell Nyaata; Defendant: Juliana Mutinda Muthoka; Defendant: George Ongera Ochanda; Defendant: Katelembo Athiani Muputi Farming & Ranching Co-operative Society Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 406 of 2017
- Procedural Posture
- Notice of Motion / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit reinstated.
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Judicial Discretion, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Penina Monica Mutungi
Plaintiff
Mercy Ndanu Mutungi
Plaintiff
Nicholas Nyamweya Nyariki
Defendant
Nyamweya Maxwell Nyaata
Defendant
Juliana Mutinda Muthoka
Defendant
George Ongera Ochanda
Defendant
Katelembo Athiani Muputi Farming & Ranching Co-operative Society Ltd
Defendant
Procedural Posture
Notice of Motion / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the late arrival of the Plaintiffs. advocate constitutes sufficient cause to set aside the dismissal.
Ratio Decidendi
The court found that the Plaintiffs. advocate had been served with the Notice to show cause only on the evening before the hearing and made reasonable efforts to attend court, arriving shortly after the matter was called out and dismissed. Given the advocate's prompt action and the absence of opposition from the Defendants, the court exercised its discretion to set aside the dismissal and reinstate the suit, directing the Plaintiffs to fix the matter for pre-trial directions within 120 days.
Court Disposition
Application allowed; suit reinstated.
Orders
- The Application dated 11th April, 2019 is allowed.
- The suit is reinstated for hearing on merit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 406 OF 2017
PENINA MONICA MUTUNGI…………………………..1ST PLAINTIFF
MERCY NDANU MUTUNGI…………………………….2ND PLAINTIFF
VERSUS
NICHOLAS NYAMWEYA NYARIKI………………….1ST DEFENDANT
NYAMWEYA MAXWELL NYAATA………………….2ND DEFENDANT
JULIANA MUTINDA MUTHOKA…………………….3RD DEFENDANT
GEORGE ONGERA OCHANDA……..………………..4TH DEFENDANT
KATELEMBO ATHIANI MUPUTI FARMING &
RANCHING CO-OPERATIVE SOCIETY LTD……....5TH DEFENDANT
RULING
1. In the Notice of Motion dated 11th April, 2019, the Plaintiffs are seeking for the following orders:
a. The orders made on 5th April, 2019 be set aside and the suit be reinstated for hearing on merit.
b. The Respondent to bear the costs of this Application.
2. The Application is supported by the Affidavit of the Plaintiffs’ advocate who has deponed that the matter was fixed for Notice to show cause why it should not be dismissed for want of prosecution on 5th April, 2019; that the Notice to show cause was delivered to his law firm offices on 4th April, 2019 in the evening and that he only became aware of the Notice to show cause on 5th April, 2019 in the morning.
3. The Plaintiffs’ advocate deponed that he rushed to court the same morning from Nairobi and arrived in court at around 10. 30am by which time the matter had been called out and dismissed in his absence; that the 1st to 4th Defendants have never entered appearance in the matter and that the Plaintiffs are keen in prosecuting the matter. The Application was not opposed.
4. The record shows that this suit was commenced by way of a Plaint dated 29th September, 2017. On 2nd November, 2017, the Plaintiffs’ Application dated 29th September, 2017 for injunctive orders was allowed.
5. After the Application dated 29th September, 2017 was allowed, the matter stayed in abeyance until 5th April, 2019 when the same came up for the Notice to show cause why the suit should not be dismissed for want of prosecution.
6. The Plaintiffs’ advocate has admitted that he was served with the Notice to show cause, and that he arrived in court at 10. 30am when the matter had already been called out and dismissed. Indeed, the record shows that the Plaintiffs’ counsel arrived in court at 10. 30a.m.
7. Considering the efforts that counsel made to travel from Nairobi to Machakos on 5th April, 2019, and having addressed the court on the said date, albeit after the matter had been dismissed, I shall exercise my discretion in favour of the Plaintiffs.
8. For those reasons, the Application dated 11th April, 2019 is allowed. The Plaintiff to fix this matter for pre-trial directions within 120 days of the date of this Ruling.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 15TH DAY OF NOVEMBER, 2019.
O.A. ANGOTE
JUDGE