[2018] KEELC 4272 (KLR)
The court held that it could not entertain the applicant's motion to review, vary, or set aside the dismissal order because the applicant was in contempt of a prior court order requiring payment of adjournment fees, which had not been complied with. Furthermore, the court found that once a suit is dismissed under...
Source-derived case information.
- Citation
- [2018] KEELC 4272 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman Western Province Provincial Land Appeals Committee; Interested Party: Felister Andati Odera; Applicant: Euphamia N. Makokha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 242 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling on Motion to Review, Vary And/or Set Aside Dismissal Order
- Outcome
- application dismissed
- Judges
- SN Mukunya
- Legal Topics
- Judicial Review, Dismissal for Non Attendance, Contempt of Court, Land Disputes Tribunal, Review of Dismissal Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman Western Province Provincial Land Appeals Committee
Respondent
Felister Andati Odera
Interested Party
Euphamia N. Makokha
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Motion to Review, Vary And/or Set Aside Dismissal Order
Legal Issues
- 1 Whether the court can review, vary or set aside its own dismissal order made under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether the applicant is entitled to relief despite being in contempt of a prior court order.
Ratio Decidendi
The court held that it could not entertain the applicant's motion to review, vary, or set aside the dismissal order because the applicant was in contempt of a prior court order requiring payment of adjournment fees, which had not been complied with. Furthermore, the court found that once a suit is dismissed under Order 17(2) of the Civil Procedure Rules for want of prosecution, the court becomes functus officio and lacks jurisdiction to review or set aside its own dismissal order; the only remedy available to the applicant is to appeal. Consequently, the application was found to be without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application to review, vary, or set aside the dismissal order is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA
AT BUNGOMA.
MISC. CIVIL APPLICATION NO. 242 OF 2000.
IN THE MATTER OF AN APPLICATION BY
EUPHAMIA N. MAKOKHA FOR JUDICIAL REVIEW.
AND.
IN THE MATTER OF THE LAND DISPUTES ACT CHAPTER 18 OF 1990.
AND.
IN THE MATTER OF THE LAW REFORM ACT CHAPTER 26 LAWS OF KENYA.
AND.
IN THE MATTER OF THE PROVINCIAL LAND DISPUTES TRIBUNAL APPEALS
COMMITTEE - WESTERN PROVINCE APPEALS NUMBER 13 OF 1999.
REPUBLIC.....................................................................APPLICANT
VERSUS.
CHAIRMAN WESTERN PROVINCE
PROVINCIAL LAND APPEALS COMMITTEE....RESPONDENT
AND.
FELISTER ANDATI ODERA........................INTERESTED PARTY
EUPHAMIA N. MAKOKHA.......................EXPARTE/APPLICANT
RULING.
[1]. On 16/5/2016 this court ordered the parties herein to fix the application of 2/12/2015 for hearing within 30 days failing which it stands dismissed. The parties were ordered to pay Kshs.1,000/= each as court adjournment fees. They did not comply with the court order and they never paid the Court adjournment fees.
[2]. The matter came up before the court on 22/5/2017. The parties were served with a notice for dismissal none attended and the suit was dismissed under order 17 rule 2 of the Civil Procedure Rules. The applicant filed this Motion to review, vary and/or set aside the orders made on 22/5/2017.
Firstly, this court cannot entertain this Motion as the parties are in contempt of the court order of 16/5/2016. They persist in such contempt with impunity. Secondly, the case was dismissed pursuant to this courts initiative under order 17(2) of the Civil Procedure Rules. Once a suit is dismissed under that rule the court is functus official and the only option is to appeal. The application herein is without merit and is dismissed with no order as to costs.
Ruling read in open Court.
Dated at Bungoma 22nd day of February, 2018.
S. MUKUNYA
JUDGE
In the presence of:
Joy: Court Assistant
Isye for Madam Chunge for Interested party
Mr. Olonyi for Areba & Co.