[2017] KEELC 2648 (KLR)
The court found that the plaintiffs provided a reasonable explanation for their non-attendance when the matter was called out for hearing, as they were present in court but did not realize their case was being called. The plaintiffs' advocate was engaged in another court and arrived after the dismissal. The court...
Source-derived case information.
- Citation
- [2017] KEELC 2648 (KLR)
- Parties
- Plaintiff: Peter Mutua Ndeto, Geoffrey Kamau Wanyoike, Jason Masimba, Peter Njuguna (suing on behalf of Seventh Day Adventist Church); Defendant: Anthony Kangethe Kari
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 51 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit reinstated; costs to the defendant.
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Judicial Discretion, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mutua Ndeto, Geoffrey Kamau Wanyoike, Jason Masimba, Peter Njuguna (suing on behalf of Seventh Day Adventist Church)
Plaintiff
Anthony Kangethe Kari
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the order dismissing the suit for non-attendance and reinstate the suit.
- 2 Whether the plaintiffs provided a reasonable explanation for their non-attendance on the hearing date.
- 3 Whether reinstating the suit would prejudice the defendant.
Ratio Decidendi
The court found that the plaintiffs provided a reasonable explanation for their non-attendance when the matter was called out for hearing, as they were present in court but did not realize their case was being called. The plaintiffs' advocate was engaged in another court and arrived after the dismissal. The court was satisfied that there was no evidence of prejudice or injustice to the defendant if the suit was reinstated. Exercising its discretion under Order 12 Rule 7 of the Civil Procedure Rules, the court held that the interests of justice would be served by setting aside the dismissal and reinstating the suit. The application to reinstate the suit was therefore allowed, with costs...
Court Disposition
Application allowed; suit reinstated; costs to the defendant.
Orders
- The order of dismissal of the suit made on 29th September 2015 is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT NAIROBI
ELC CASE NO. 51 OF 2010
PETER MUTUA NDETO
GEOFFREY KAMAU WANYOIKE
JASON MASIMBA
PETER NJUGUNA...................................................................PLAINTIFFS
(Suing on behalf of Seventh Day Adventist Church)
VERSUS
ANTHONY KANGETHE KARI.................................................DEFENDANT
RULING
Under Order 12 Rule 7 of the Civil Procedure Rules, this court has power to reinstate a suit which has been dismissed for non-attendance. When this suit came up for hearing on 29th September 2015, the Plaintiffs and their advocates did not appear and on application by the Defendant, the suit was dismissed for non-attendance. What is now before me is the Plaintiffs’ Notice of Motion application dated 19th January 2016 seeking to set aside the order of dismissal of the suit which was made on 29th September 2015 aforesaid. The Plaintiffs have contended that they were in court on the hearing date of 29th September 2015 but when this case was called out, they did not realize that it was their case because their names were not mentioned by the court assistant. It was after they made inquiries with the court assistant that they were informed that the case had been called out and dismissed. The Plaintiffs placed evidence before the court showing that they indeed attended court on the material day. In his affidavit which was filed in support of the application, the Plaintiff’s advocate, Justry Lumumba Nyaberi stated that the Plaintiffs were in court on 29th September 2015 when the matter came up for hearing. He stated that he was not in court when the matter was called out because he was attending to another matter in a different court. He stated that when he ultimately came to this court, he found when the matter had been called out and dismissed. He annexed a cause list showing that he had a matter in another court on the material day.
The application was opposed by the Defendant who contended that there was no evidence that the Plaintiffs were in court on 29th September 2015. The Defendant contended further that the application was brought after inordinate delay. I have considered the Plaintiff’s application and the opposition thereto by the Defendant. I am satisfied that the Plaintiffs have given reasonable explanation why they did not respond when this matter was called out for hearing on 29th September 2015 resulting in the dismissal of the same. There is no evidence that any prejudice or injustice would be occasioned to the Defendant if the suit is reinstated. I am of the view that it would serve the interest of justice in the circumstances if the court exercises its discretion in favour of the Plaintiffs.
For the foregoing reasons, I find merit in the application dated 19th January 2016. The same is allowed with costs to the Defendant.
Delivered and signed at Nairobi this 28th day of April, 2017.
S. OKONG’O
JUDGE
In the presence of:
Mr. Wambua h/b for Nyaberi For the Plaintiff
N/A For the Defendant
Kajuju Court Assistant