[2021] KEELC 4405 (KLR)
The court found that the applicants had satisfactorily explained the circumstances leading to the dismissal of the suit, namely the resignation of their advocate and the inability to secure another advocate to hold brief. The application for reinstatement was filed promptly. The Attorney General did not oppose the...
Source-derived case information.
- Citation
- [2021] KEELC 4405 (KLR)
- Parties
- Applicant: John Njati Kirema; Applicant: Esther Nkrote Kirema; Respondent: The Deputy County Commissioner Tigania West Sub-County Meru County; Respondent: The Land Control Board Tigania West; Respondent: The District Land Registrar Maua; Respondent: The Hon. Attorney General; Respondent: Philip Kirema; Respondent: Timothy Murathani
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 9 of 2018
- Procedural Posture
- Judicial Review / Ruling on Application for Reinstatement of Suit
- Outcome
- Application for reinstatement allowed; suit and previous orders reinstated; costs to applicants; time-bound hearing ordered.
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Judicial Review Orders, Land Control Board, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njati Kirema
Applicant
Esther Nkrote Kirema
Applicant
The Deputy County Commissioner Tigania West Sub-County Meru County
Respondent
The Land Control Board Tigania West
Respondent
The District Land Registrar Maua
Respondent
The Hon. Attorney General
Respondent
Philip Kirema
Respondent
Timothy Murathani
Respondent
Procedural Posture
Judicial Review / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance.
- 2 Whether previous orders of certiorari and prohibition should be reinstated.
- 3 Who should bear the costs of the application for reinstatement.
Ratio Decidendi
The court found that the applicants had satisfactorily explained the circumstances leading to the dismissal of the suit, namely the resignation of their advocate and the inability to secure another advocate to hold brief. The application for reinstatement was filed promptly. The Attorney General did not oppose the application, provided that no orders which did not exist prior to dismissal were issued. The court, therefore, set aside the dismissal order, reinstated the suit and the previous orders given at the leave stage, and ordered the applicants to pay the costs of the application. The court also directed that the suit be heard within three months, failing which the reinstated orders...
Court Disposition
Application for reinstatement allowed; suit and previous orders reinstated; costs to applicants; time-bound hearing ordered.
Orders
- The orders of 20.1.2020 dismissing the suit are set aside and the suit is reinstated.
- The orders given at the leave stage on 25.6.2018 are reinstated.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
JUDICIAL REVIEWNO.9 OF 2018
JOHN NJATI KIREMA..........................................................1ST APPLICANT
ESTHER NKIROTE KIREMA.............................................2ND APPLICANT
AND
THE DEPUTY COUNTY COMMISSIONER
TIGANIA WEST SUB-COUNTY MERU COUNTY......1ST RESPONDENT
THE LAND CONTROL BOARD TIGANIA WEST......2ND RESPONDENT
THE DISTRICT LAND REGISTRAR MAUA...............3RD RESPONDENT
THE HON. ATTORNEY GENERAL...............................4TH RESPONDENT
PHILIP KIREMA...............................................................5TH RESPONDENT
TIMOTHY MURATHANI................................................6TH RESPONDENT
RULING
1. Vide a notice of motion filed on 29. 1.2020, the ex-parte applicant is seeking orders to have the suit reinstated as the same was dismissed on 20. 1.2020. He also prays that the previous subsisting orders of certiorari and prohibition be reinstated. It is averred that the advocate who was in conduct of the matter resigned leaving the firm overwhelmed. Efforts to get an advocate to hold brief were also futile.
2. On 24. 6.2020, Counsel for the Attorney General indicated that they would not oppose the application for reinstatement of the suit. They later qualified this position by stating that prayer 2 in the application dated 29. 1.2020 is not clear since no order of certiorari was ever issued.
3. The other respondents were served but they did not file any response to the current application.
4. The decision whether a suit should be reinstated for trial is a matter of justice and it depends on the facts of the case – see Mwangi S. Kaimenyi vs Attorney General & another (2014) eKLR.
5. In the present case, the ex-parte applicants’ counsel has explained to the satisfaction of this court the predicament which befell their law firm when the counsel handling the matter resigned. I have also taken into account that the Attorney General is not opposing the application as long as orders which did not exist before the dismissal of the suit are not issued.
6. Finally, I have considered that the application was filed expeditiously. In the circumstances, I allow the application filed on 29. 1.2020 in the following terms:
7. The orders of 20. 1.2020dismissing the suitare hereby set aside and the suit is reinstated.
8. The orders givenat the leave stage on25. 6.2018 are also reinstated.Parties to see the extracted order issued on 26. 6.2018.
9. The ex-parte applicants arecondemned to pay the costs of this application.
10. This suit is to be heard within a period of threemonths otherwise the orders granted herein shall lapse.
DATED, SIGNED AND DELIVERED AT MERU THIS 10TH DAY OF FEBRUARY, 2021
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this Ruling was given to the advocates for the parties through a virtual session via Microsoft teams on 3. 11. 2020. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE