[2020] KEELC 2094 (KLR)
The court found that the 2nd plaintiff, James Wanyoike Gatoto, was genuinely indisposed on the date of the hearing, as evidenced by a medical letter from Ngewa Health Center. The court was satisfied that the plaintiffs' absence was due to unavoidable circumstances and not an attempt to delay proceedings. The court...
Source-derived case information.
- Citation
- [2020] KEELC 2094 (KLR)
- Parties
- Plaintiff: Peter C. Gatoto Karanja; Plaintiff: James Wanyoike Gatoto; Defendant: Stephen Karanja Gatoto; Defendant: Godfrey Njoroge Wanyoike
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 218 of 2012
- Procedural Posture
- Notice of Motion / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed; suit reinstated; costs to plaintiffs
- Judges
- LC Komingoi
- Legal Topics
- Setting Aside Orders, Reinstatement of Suit, Non Attendance, Dismissal for Non Prosecution
- 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
Peter C. Gatoto Karanja
Plaintiff
James Wanyoike Gatoto
Plaintiff
Stephen Karanja Gatoto
Defendant
Godfrey Njoroge Wanyoike
Defendant
Procedural Posture
Notice of Motion / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the orders of 20th May 2019 dismissing the suit should be set aside.
- 2 Whether the plaintiffs have provided sufficient justification for non-attendance and reinstatement of the suit.
Ratio Decidendi
The court found that the 2nd plaintiff, James Wanyoike Gatoto, was genuinely indisposed on the date of the hearing, as evidenced by a medical letter from Ngewa Health Center. The court was satisfied that the plaintiffs' absence was due to unavoidable circumstances and not an attempt to delay proceedings. The court held that there were justifiable reasons to set aside the dismissal and reinstate the suit, emphasizing the importance of giving parties an opportunity to be heard on the merits of their case. The plaintiffs, however, were ordered to bear the costs of the application as a condition for reinstatement.
Court Disposition
application allowed; suit reinstated; costs to plaintiffs
Orders
- The orders of 20th May 2019 are hereby set aside.
- The plaintiff’s suit is reinstated for hearing.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC SUIT NO. 218 OF 2012
CONSOLIDATED WITH ELC NO. 539 OF 2009
PETER C. GATOTO KARANJA...........................................1ST PLAINTIFF
JAMES WANYOIKE GATOTO............................................2ND PLAINTIFF
VERSUS
STEPHEN KARANJA GATOTO.......................................1ST DEFENDANT
GODFREY NJOROGE WANYOIKE...............................2ND DEFENDANT
RULING
1. This is the notice of motion dated 10th June 2019 brought under order 12 rule 7 of the Civil Procedure Rules.
2. It seeks orders:-
1. That the orders of 20th May 2019 be set aside and the plaintiff’s suit be reinstated for hearing.
2. That costs of this application be provided for.
3. The grounds are on the face of the application and are:-
(a)That the non attendance in court was due to unavoidable circumstances.
(b)That the plaintiff is keen on prosecuting his claim and will be seriously prejudiced if the counterclaim is decided against him.
4. The application is supported by the affidavit of James Wanyoike Gatoto, one of the plaintiff’s herein sworn on the 10th June 2019.
5. The application is opposed. There is a replying affidavit sworn by Stephen Karanja Gatoto, the 1st defendant herein sworn on the 29th July 2019.
6. The application was canvassed by oral submissions.
7. I have considered the notice of motion on the affidavit in support, the replying affidavit and the oral submissions of counsel. The issue for determination is whether this application is merited.
8. I note that, James Wayoike Gatoto, the 2nd plaintiff is elderly. It has been stated that on 20TH May 2019 he was indisposed. A letter dated 6th June 2019 from a clinical officer at Ngewa Health Center states that the 2nd plaintiff sought treatment at the facility on 16th May 2019. That he was advised to be on bed rest for five days from 17th May 2019 to 21st May 2019. He was asked to go back for review on 22nd May 2015. I am satisfied that the 2nd plaintiff was indisposed on 20th May 2019 when the suit was dismissed.
9. I am also satisfied that there are justifiable reasons to warrant reinstating of the plaintiff’s suit. The plaintiffs deserve an opportunity to ventilate their claim I therefore grant the orders namely; that the orders of 20th May 2019 are hereby set aside and the plaintiff’s suit is reinstated. The plaintiffs shall bear costs of this application.
10. It is so ordered.
Dated, signed and delivered in Nairobi on this 18th day of June 2020.
..........................
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Njoroge for Mutiso for the plaintiffs
No appearance for the defendants
Kajuju – Court Assistant.