[2021] KEHC 3910 (KLR)
The court found that the dismissal of the suit for want of prosecution was improper because the applicant and his advocate were not notified as required by the Civil Procedure Rules. The absence of any opposition from the respondent and the fact that the applicant had complied with discovery further supported the...
Source-derived case information.
- Citation
- [2021] KEHC 3910 (KLR)
- Parties
- Applicant: Philip K. Toroitich; Respondent: Paulina Chepkorir Misoi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 53 of 2004
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit reinstated and transferred to the Environment and Land Court.
- Judges
- HK Chemitei
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Notice Requirements, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip K. Toroitich
Applicant
Paulina Chepkorir Misoi
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution was proper in the absence of notice to the parties.
- 2 Whether the suit should be reinstated and set down for hearing on its merits.
Ratio Decidendi
The court found that the dismissal of the suit for want of prosecution was improper because the applicant and his advocate were not notified as required by the Civil Procedure Rules. The absence of any opposition from the respondent and the fact that the applicant had complied with discovery further supported the application. The court emphasized that, in the interest of justice, the substantive land dispute should be heard and determined on its merits rather than being dismissed on a technicality. Consequently, the court set aside the dismissal order, reinstated the suit, and transferred it to the Environment and Land Court for hearing and determination.
Court Disposition
Application allowed; suit reinstated and transferred to the Environment and Land Court.
Orders
- The orders issued on 7th July 2008 dismissing this suit are set aside and the suit is hereby reinstated.
- The suit is transferred to the Land and Environment Court at Nakuru for hearing and determination.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO. 53 OF 2004
PHILIP. K. TOROITICH.......................................................PLAINTIFF/APPLICANT
VERSUS
PAULINA CHEPKORIR MISOI...................................DEFENDANT /RESPONDENT
RULING
1. The application by the plaintiff dated 25th April 2009 prays that the orders by this court dated 7th July 2008 dismissing this suit for want of prosecution be set aside and the suit be revived and set down for hearing. The application is supported by the sworn affidavit of Elizabeth Chunge counsel for the applicant and sworn on 8th June 2009.
2. The application is not opposed despite the respondent being served. The applicant basic reason is that they were not notified of the intended dismissal as per the provisions of Order XVI rule 2 of the Civil Procedure Rules. In other words, neither he nor the advocate were invited to attend court.
3. The said affidavit contains several correspondences between the counsels for the applicant and the courts registry and it appears that as at the time the suit was dismissed the applicant had already complied with discoveries and all that remained was to set the suit for hearing. Apparently from the correspondence it appears that getting dates from the registry was difficult and that may explain why the matter was not fixed for hearing.
4. The court has perused the court file but has been unable to get the proceedings that dismissed the suit. The only proceedings are those on the file folder. There are no notes to indicate what transpired between 3rd November 2004 and 16th March 2021 when the natter was brought to the attention of this court.
5. Having stated so this court finds the reasons for dismissal not plausible for the court should have issued notice to the parties. The respondent has not attended court to oppose or otherwise explain her position.
6. On the face of it the applicant is the holder of the title for land parcel number Kericho /Olenguruone/Kiptagich /100. He alleges that the respondent encroached on it and he had been unable to settle. That claim ought to in the interest of justice and devoid of all technicalities be determined to its logical conclusion.
7. In the premises, the application is allowed as hereunder;
a. The orders issued on 7th July 2008 dismissing this suit are set aside and the suit is hereby reinstated.
b. This being a land matter and the same not having been heard is hereby transferred to the Land and Environment Court at Nakuru for hearing and determination.
c. The costs shall await the outcome of the main case.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 23RD DAY OF SEPTEMBER 2021
H. K. CHEMITEI
JUDGE