[2016] KEHC 3931 (KLR)
The court found that although the respondent's counsel claimed all parties were informed of the new hearing date, there was no record in the court file to confirm that such communication was made. The absence of a clear note or record regarding the rescheduling of the hearing date created doubt as to whether the...
Source-derived case information.
- Citation
- [2016] KEHC 3931 (KLR)
- Parties
- Plaintiff: Peter Mwangi Thumbi; Defendant: Walter Wanjala
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 48 of 2014
- Procedural Posture
- Notice of Motion / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; dismissal order set aside; suit reinstated.
- Legal Topics
- Setting Aside Orders, Reinstatement of Suit, Dismissal for Nonattendance, Hearing Dates, Court Communication
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mwangi Thumbi
Plaintiff
Walter Wanjala
Defendant
Procedural Posture
Notice of Motion / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be set aside.
- 2 Whether the suit should be reinstated for hearing on its merits.
- 3 Whether proper notice of the new hearing date was communicated to all parties.
Ratio Decidendi
The court found that although the respondent's counsel claimed all parties were informed of the new hearing date, there was no record in the court file to confirm that such communication was made. The absence of a clear note or record regarding the rescheduling of the hearing date created doubt as to whether the applicant was properly notified. Given the disputed facts and in the interests of justice, the court determined that the dismissal order should be set aside and the suit reinstated to allow for a hearing on the merits. The court emphasized the importance of proper court record-keeping and communication to avoid prejudice to any party.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated.
Orders
- The orders of 21/10/2015 and all consequential orders are set aside.
- The case is reinstated for hearing.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 48 OF 2014
PETER MWANGI THUMBI ………………PLAINTIFF
VERSUS
WALTER WANJALA …………………DEFENDANT
RULING
[1] The applicant filed this notice of motion under Order 12 rule 7 and Order 15 rule 1 and under Section 1A, 1B and 3 of the Civil Procedure Rules.
The applicant prays among other prayers that the order made on 21/10/2015 be set aside and/or reviewed and the suit be reinstated for hearing.
[2] The basis of the application is that this case was fixed for hearing on 19/10/2015. That on that day the court was not sitting and the case was scheduled for hearing on 21/10/2015. The applicant states that he was not informed of that hearing date though he attended the court on 19/10/2015. He states that for that reason he did not attend the court and the court then dismissed the suit under Order 12 Rule 3.
[3] The respondent opposes the application and states that the case was fixed for hearing on 19/10/15. He states that all the parties attended and were told by the court clerk that the court was not sitting but the case would be heard on 21/10/2016. That the applicants were present. That the applicant and his client never attended the court on 21/10/2016 and that therefore, the suit was dismissed under Order 12 rule 3(1) of the Civil Procedure Act. He argues that this application has no merits and that the same should be dismissed.
[4] My perusal of the court record shows that truly this case was fixed for hearing on 19/10/15. It also shows that the court did not sit. The next record in the court file was 21/10/2015 when the case was dismissed under Order 12 rule 13(1)
There is nothing to show how the date of 21/10/15 was taken though counsel for the respondent Mr. Were told the court on that date that the parties to the suit were advised to come for hearing on 21/10/2015.
Mr. Were for the respondent might just as well be telling the truth. However, the court registry ought to have noted that communication on the court file like they note when cases are fixed for hearing. Such note herein that would have cleared the air as to how the 21st day was taken and whether or not all the parties were present. This issue is unfortunately disputed. That leaves the word of the applicant against that of the respondent.
[5] In the interests of justice, the orders of 21/10/2015 and all consequential orders are set aside. The case shall be reinstated for hearing and a fresh hearing date be fixed for hearing on merits. The costs of this application shall be in the cause.
Dated, signed and delivered this 27th day of July 2016
S.MUKUNYA - JUDGE
In the presence of
Gladys Court Assistant
Mr. Were for the defendant/respondent
Mr. Athunga for the plaintiff – Mr. Juma holding brief