[2019] KEELC 4360 (KLR)
The court found that there was no evidence on record that the hearing notice for the scheduled hearing was served on either the plaintiffs or the defendants. None of the parties attended court on the hearing date. The court was satisfied that the omission leading to dismissal was inadvertent and that substantive...
Source-derived case information.
- Citation
- [2019] KEELC 4360 (KLR)
- Parties
- Plaintiff: Peter Elima Nyukuri; Plaintiff: David Nyongesa Wamalwa; Defendant: Leonard K. Wamocho; Defendant: Kennedy W Sitoko; Defendant: Protus S Munialo; Defendant: Andrew Boaz Juma; Defendant: Maurice Tabalia; Defendant: Patrick Jokinda
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 160 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Suit
- Outcome
- Application for reinstatement of suit granted; no order as to costs.
- Judges
- FM Njoroge
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Elima Nyukuri
Plaintiff
David Nyongesa Wamalwa
Plaintiff
Leonard K. Wamocho
Defendant
Kennedy W Sitoko
Defendant
Protus S Munialo
Defendant
Andrew Boaz Juma
Defendant
Maurice Tabalia
Defendant
Patrick Jokinda
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance.
- 2 Whether there was proper service of the hearing notice for the dismissed hearing date.
- 3 Whether the interests of justice require the suit to be heard on its merits.
Ratio Decidendi
The court found that there was no evidence on record that the hearing notice for the scheduled hearing was served on either the plaintiffs or the defendants. None of the parties attended court on the hearing date. The court was satisfied that the omission leading to dismissal was inadvertent and that substantive justice would be served by setting aside the dismissal order. The application for reinstatement was therefore granted to allow the suit to be heard on its merits.
Court Disposition
Application for reinstatement of suit granted; no order as to costs.
Orders
- The application dated 21/11/2018 is granted in terms of prayer (a) alone.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
ELC NO. 160 OF 2015
PETER ELIMA NYUKURI......................................1ST PLAINTIFF
DAVID NYONGESA WAMALWA..........................2ND PLAINTIFF
VERSUS
LEONARD K. WAMOCHO..................................1ST DEFENDANT
KENNEDY W SITOKO........................................2ND DEFENDANT
PROTUS S MUNIALO.........................................3RD DEFENDANT
ANDREW BOAZ JUMA.......................................4TH DEFENDANT
MOURICE TABALIA...........................................5TH DEFENDANT
PATRCK JOKINDA...............................................6TH DEFENDANT
RULING
1. The application dated 21/11/2018 and filed in court on the same has been brought by the plaintiffs. It seeks an order that the honourable court be pleased to restate the applicant’s case and upon reinstatement of the case the same be allowed as prayed. They also prayed for costs be granted to the plaintiffs. The application is not opposed.
2. The application is supported by the sworn affidavit of the 1st plaintiff dated 21st November, 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 case was dismissed for non-attendance by failure to attend court by the applicants case resulted from misinformation to the effect that trial; that the omission was inadvertent and that the applicant has good cause and that it is the interest of justice that the application is allowed.
4. There is no evidence on the file record that the hearing notice for the hearing scheduled for 30/10/2018 was ever served upon the plaintiff or the defendant. None of the parties were in court on the hearing date.
5. In view of the above situation I am satisfied that substantive justice would be done in this case if the dismissal order was set aside and the case ordered heard on its merits.
6. I therefore grant the application date 21/11/2018 in terms of prayer (a) alone. There shall be no orders as to costs. The suit shall be expeditiously fixed for hearing.
Dated, signedanddeliveredatKitale on this28thday ofFebruary, 2019.
MWANGI NJOROGE
JUDGE
28/2/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Elias
Applicant in person present
N/A for defendants
(Defendants absent)
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
28/2/2019