[2006] KEHC 80 (KLR)
The court found that there was no evidence that the Deputy Registrar notified the applicant or their counsel of the hearing date. In the absence of such notification, the applicant and counsel's absence was excusable. To prevent injustice and uphold the right to be heard, the court exercised its discretion to set...
Source-derived case information.
- Citation
- [2006] KEHC 80 (KLR)
- Parties
- Applicant: Republic; Respondent: District Land Adjudication and Settlement Officer Transmara Division; Respondent: Charles Owino Ogutu; Respondent: Philip Oguttu; Applicant: Silfanus Ojalo Ogutu
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 56 of 2005
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal Order and Reinstate Application
- Outcome
- application allowed; dismissal order set aside; application reinstated
- Judges
- K Bauni
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Land Adjudication Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
District Land Adjudication and Settlement Officer Transmara Division
Respondent
Charles Owino Ogutu
Respondent
Philip Oguttu
Respondent
Silfanus Ojalo Ogutu
Applicant
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal Order and Reinstate Application
Legal Issues
- 1 Whether the applicant was denied a fair opportunity to be heard due to lack of notice of the hearing date.
- 2 Whether the court's dismissal order of 4th October 2005 should be set aside and the application reinstated.
Ratio Decidendi
The court found that there was no evidence that the Deputy Registrar notified the applicant or their counsel of the hearing date. In the absence of such notification, the applicant and counsel's absence was excusable. To prevent injustice and uphold the right to be heard, the court exercised its discretion to set aside the dismissal order of 4th October 2005 and reinstated the application. Costs were ordered to be in the cause.
Court Disposition
application allowed; dismissal order set aside; application reinstated
Orders
- The court's orders made on 4th October 2005 are set aside.
- The application dated 23rd September 2005 is reinstated.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Misc Civ Appli 56 of 2005
IN THE MATTER OF AN APPLICATION FOR ORDER OF PROHIBITION TO RESTRAIN AND STOP DISTRICT LAND ADJUDICATION AND SETTLEMENT OFFICER TRANSMARA AND HIS SURVEYOR FROM ALTERING OR CHANGING NAMES OF CURRENT REGISTERED PROPRIETORS OLDANYATTI/476 AND 477 AND LAND COMMITTEES AND ARBITRATION BOARD PROCEEDINGS AND DECISION AFFECTING LANDS P/NO. OLDANYATTI/476 AND 477 IN DISREGARD OF LAND ADJUDICATION PROCEDURES AS PROVIDED BY LAND ADJUDICATION ACT CAP 284 LAWS OF KENYA AND QUASH PROCEEDINGS OF DISTRICT LAND ADJUDICATION AND SETTLEMENT OFFICER DATED 15. 2.2005 AND EVICTION ORDER THEREUNDER
AND
IN THE MATTER OF CIVIL PROCEDURE RULES THERETO
AND
IN THE MATTER OF PROVISIONS OF LAND ADJUDICATION ACT
BETWEEN
REPUBLIC ………………………..………….…..……………………… APPLICANT
VERSUS
DISTRICT LAND ADJUDICATION AND SETTLEMENT OFFICER TRANSMARA
DIVISION …………………………….……...……………………. 1ST RESPONDENT
CHARLES OWINO OGUTU ……………………………………. 2ND RESPONDENT
PHILIP OGUTTU ………………………………………………… 3RD RESPONDENT
AND
SILFANUS OJALO OGUTU ………………………...…………………….. EX-PARTE
RULING:
Applicant seek court to set aside its orders of 4th October 2005 dismissing the application dated 23rd September 2005 and reinstate that application.
It was submitted by counsel that when the court certified the application as urgent and fixed the application for hearing on 10th October 2005 that date was not brought to the attention of the counsel or the applicant and that is why they did not attend on 10th October 2005.
Mr. Ondongo for the respondent opposed the application and stated that the applicant having filed the application under certificate of urgency should have followed up to find when it was fixed.
I have considered the application. Indeed when the court fixed the application for hearing on 4/10/2005 the counsel and applicant were absent. There is no evidence that the Deputy Registrar notified him of the date of hearing. In the circumstances I allow the application and set aside this court orders made on 4th October 2005.
Costs in the cause.
Dated 16th June 2006.
KABURU BAUNI
JUDGE
Cc – Mobisa
N/A for Applicant
N/A for Respondent