[2021] KEELC 1957 (KLR)
The court found that the plaintiff's failure to attend court was not intentional and that he had demonstrated, through affidavit evidence, sufficient cause for his absence. The application to set aside the dismissal was filed promptly, only one day after the order was made. The court emphasized the principle that...
Source-derived case information.
- Citation
- [2021] KEELC 1957 (KLR)
- Parties
- Plaintiff: Philip Meli Rono; Defendant: John Chebai Mwela; Defendant: Keneth Saisi Mudaki; Defendant: The Land Registrar, Trans Nzoia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 38 of 2019
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application granted. Dismissal order set aside and suit reinstated.
- Legal Topics
- Dismissal for Non Attendance, Reinstatement of Suit, Review of Court Orders, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Meli Rono
Plaintiff
John Chebai Mwela
Defendant
Keneth Saisi Mudaki
Defendant
The Land Registrar, Trans Nzoia
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be reviewed, varied, set aside or vacated.
- 2 Whether the main suit should be reinstated for hearing on merits.
Ratio Decidendi
The court found that the plaintiff's failure to attend court was not intentional and that he had demonstrated, through affidavit evidence, sufficient cause for his absence. The application to set aside the dismissal was filed promptly, only one day after the order was made. The court emphasized the principle that disputes should be determined on their merits rather than on procedural technicalities, particularly where no prejudice would be suffered by the defendants and the interests of justice require reinstatement. Accordingly, the court exercised its discretion to set aside the dismissal order and reinstate the suit for hearing.
Court Disposition
Application granted. Dismissal order set aside and suit reinstated.
Orders
- The order dismissing the suit for non-attendance is reviewed, set aside and/or vacated.
- The main suit is reinstated for hearing on merits.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 38 OF 2019
PHILIP MELI RONO.................................................................................PLAINTIFF
VERSUS
JOHN CHEBAI MWELA...............................................................1ST DEFENDANT
KENETH SAISI MUDAKI............................................................2ND DEFENDANT
THE LAND REGISTRAR, TRANS NZOIA................................3RD DEFENDANT
RULING
The Application
1. This is a Ruling of a Notice of Motion dated 26/5/2021and filed in court on 27/5/2021 brought under Article 50and 159of theConstitutionandOrder 12 Rule 3and7, Order 51 Rule 15of theCivil Procedure Rules and Section 3Aof theCivil Procedure Act.The plaintiff sought the following orders in his application:
(1) …spent
(2) That the order of this honourable court made on the 26/5/2021 dismissing the suit for non-attendance by the plaintiff and his advocate with all consequential orders be reviewed, varied, set aside and/or vacated.
(3) That the main suit filed in this suit on the 30/4/2019 be reinstated.
(4) That such other and/or further order do issue in the interests of justice.
(5) That cost of this application be provided for.
2. The application is supported by the affidavit sworn on 26/5/2021 by the plaintiff’s counsel. The grounds upon which the application is made are that the suit was before the dismissal pending final determination by this court; that the subject matter of this suit and the real controversy between the parties herein has not been settled; that the plaintiff was not aware of the intention of the court to dismiss this matter; that the plaintiff did not attend court for the hearing of this matter because of matters beyond his control and failure to attend the hearing of the matter was not intentional; that the plaintiff shall suffer great and irreparable damage if the instant application is not allowed; that the defendants will suffer no prejudice at all upon grant of the orders sought herein and that it is only fair and in the interests of justice that the application be allowed.
The Response
3. The instant application is unopposed.
The Submissions
4. No submissions were filed on behalf of the parties.
Determination
5. I have considered the application.
6. The genesis of the instant application is that the instant suit was dismissed for want of prosecution on 25/5/2021 when all the parties failed to attend court.
7. The plaintiff avers that the failure to attend court was not intentional and the defendant has not risen to aver the contrary. It is the normal approach by this court that disputes before it should as far as is possible be resolved by way of hearing on merits. I think the plaintiff has by his affidavit demonstrated that the failure to attend court was inadvertent and he should be given a second chance to ventilate his grievance against the defendants.
8. For the foregoing reasons I find that the application dated 26/5/2021, which was filed only one day after the dismissal order was made, has merit and it is hereby granted as prayed in prayers nos (2)and(3) thereof. The costs of the application shall be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 22ND DAY OF SEPTEMBER, 2021.
MWANGI NJOROGE
JUDGE, ELC, KITALE.