[2018] KEELC 3389 (KLR)
The court found that the applicants failed to provide credible evidence that the matter was not cause listed or that the court file had gone missing. The explanation for the delay in prosecuting the suit was not plausible, and the responsibility for substitution of the deceased defendant lay with the plaintiffs, not...
Source-derived case information.
- Citation
- [2018] KEELC 3389 (KLR)
- Parties
- Plaintiff: Phyllis Kaminicia M'Miriti; Plaintiff: Rebecca Mwiti Mungorwe; Plaintiff: Julia Nchenge; Plaintiff: Ruth Nkuene; Defendant: M'Rungento Mbogori; Defendant: David Silas Safari; Defendant: Joseph Kithinji Kangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 59 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Suit
- Outcome
- Application for reinstatement allowed with conditions.
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Prosecution, Substitution of Parties, Court File Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phyllis Kaminicia M'Miriti
Plaintiff
Rebecca Mwiti Mungorwe
Plaintiff
Julia Nchenge
Plaintiff
Ruth Nkuene
Plaintiff
M'Rungento Mbogori
Defendant
David Silas Safari
Defendant
Joseph Kithinji Kangi
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-prosecution.
- 2 Whether the applicants have provided sufficient reasons for the delay and for the reinstatement of the suit.
- 3 Who bears the responsibility for substitution of a deceased defendant.
Ratio Decidendi
The court found that the applicants failed to provide credible evidence that the matter was not cause listed or that the court file had gone missing. The explanation for the delay in prosecuting the suit was not plausible, and the responsibility for substitution of the deceased defendant lay with the plaintiffs, not the deceased's advocate. However, recognizing the emotive nature of land disputes and in the interest of justice, the court exercised its discretion to set aside the dismissal order and reinstate the suit, subject to the condition that the suit be set down for hearing within six months, failing which it would stand dismissed again. The applicants were ordered to bear the costs...
Court Disposition
Application for reinstatement allowed with conditions.
Orders
- The orders of 13.7.2015 dismissing the suit are set aside.
- The suit is reinstated on condition that it is set down for hearing within 6 months, failing which it will stand dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 59 OF 2005
PHYLLIS KAMINCIA M’MIRITI ……….…… 1ST PLAINTIFF
REBECCA MWITI MUNGORWE ………….... 2ND PLAINTIFF
JULIA NCHENGE………………………….…… 3RDPLAINTIFF
RUTH NKUENE ……………………………..… 4TH PLAINTIFF
VERSUS
M’RUNGENTO MBOGORI ………………... 1ST DEFENDANT
DAVID SILAS SAFARI …………………..…. 2ND DEFENDANT
JOSEPH KITHINJI KANGI ……………..…. 3RD DEFENDANT
RULING
1. The applicants (vide their application dated 23. 1.2018) are seeking orders of reinstatement of the suit, which suit was dismissed on 13. 7.2015.
2. Applicants claim that the matter was not in the cause list of 13. 7.2015, that, that the court file also went missing and that 2nd defendant died.
3. Applicants have not availed a cause list of 13. 7.2015 and hence the claim that the matter was not cause listed is neither here nor there.
4. There is also no evidence of the file having gone missing. Annexure CRMM “6” is a letter inviting defence advocate to participate in fixing of the hearing date, and is dated 5. 5.2017. It is not a document to show that the court file had gone missing. There is no plausible explanation as to why there was inordinate delay in the prosecution of this matter.
5. The applicants allege that advocate for 2nd defendant (deceased) failed to take any action for substitution hence delaying the matter. However onus was not upon deceased’s advocate to cause substitution. This is the plaintiffs’ case and it was their responsibility to ensure that there was substitution.
6. Despite the foregoing findings, and noting that land is a very emotive matter, I will give the applicants a final chance to prosecute the case. I hence grant the following orders;
i. The orders of 13. 7.2015 dismissing the suit are hereby set aside. The suit is hereby reinstated on condition that this suit is to be set down for hearing within a period of 6 months, failure to which the suit will still stand as dismissed.
ii. Applicants are to bear the costs of this application.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 9th MAY, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Miss Munga for plaintiff present
A.G Kiongo for defendant absent
HON. LUCY. N. MBUGUA
ELC JUDGE