[2018] KEELC 4458 (KLR)
The court found that the applicant's advocate provided a credible and sufficient explanation for his absence, namely, a car breakdown on the way to court, which led to his late arrival. The court accepted that the applicant should not be penalized for the advocate's error, especially given the irreversible prejudice...
Source-derived case information.
- Citation
- [2018] KEELC 4458 (KLR)
- Parties
- Applicant: Republic; Respondent: The Minister, Ministry of Lands, through the Sub-County Administrator Gatunga Adjudication Section; Respondent: The Attorney General; Interested Party: Sophia Gatiria Kimencu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application 10 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; dismissal order set aside and suit reinstated.
- Judges
- FM Njoroge
- Legal Topics
- Judicial Review, Certiorari, Reinstatement of Suit, Land Adjudication, Dismissal for Nonattendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Minister, Ministry of Lands, through the Sub-County Administrator Gatunga Adjudication Section
Respondent
The Attorney General
Respondent
Sophia Gatiria Kimencu
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit for non-attendance should be set aside and the suit reinstated.
- 2 Whether the applicant would suffer irreparable loss if the suit is not reinstated.
- 3 Whether the delay in attendance by the applicant's advocate constitutes sufficient cause for reinstatement.
Ratio Decidendi
The court found that the applicant's advocate provided a credible and sufficient explanation for his absence, namely, a car breakdown on the way to court, which led to his late arrival. The court accepted that the applicant should not be penalized for the advocate's error, especially given the irreversible prejudice that would result from the inability to file a fresh judicial review application after the statutory period had lapsed. The court also considered that the matter was listed for mention, not for hearing, and that the respondents had not complied with directions to file their responses. In the interests of justice and to avoid irreparable loss to the applicant, the court...
Court Disposition
Application allowed; dismissal order set aside and suit reinstated.
Orders
- The suit is reinstated for hearing on merit.
- The exparte applicant to serve upon the respondents the orders issued by the court within 5 days.
Full Case Text
Judgment text and source record
56 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA MISCELLANEOUS JUDICIALREVIEW CASE NO. 10 OF 2017
IN THE MATTER OF APPLICATION FOR JUDICIAL
REVIEW FOR ORDERS OF CERTIORARI
AND
IN THE MATTER OF APPEAL TO THE MINISTER
APPEAL NO. 141OF 2017 IN RESPECT TO L.R.
NO. 2340GATUNGA ADJUDICATION SECTION
REPUBLIC.........................................................APPLICANT
VERSUS
THE MINISTER, MINISTRY OF LANDS,
THROUGH THE SUB-COUNTY
ADMINISTRATOR GATUNGA
ADJUDICATION SECTION…...............1ST RESPONDENT
THE ATTORNEY GENERAL................2ND RESPONDENT
SOPHIA GATIRIA KIMENCU..........INTERESTED PARTY
RULING
1. This application is dated 7th February, 2018 and seeks orders that:
1. The honourble court be pleased to hear this application on priority basis.
2. The honourable court be pleased to set aside the dismissal order made on 6. 2.2018 and reinstate the main motion for hearing on merit.
3. Costs be provided for.
2. The application has the following grounds:
A. The suit was dismissed because of the absence of the lawyer for the applicant
B. The lawyer delayed in attending court in time because his car broke down on his way to the court.
C. If the suit is not reinstated the exparte applicant will suffer irreparable loss because he cannot file a fresh one this being a judicial review of an order of a tribunal which cannot be done after expiring of 6 months and six months have already expired.
D. The exparte applicant is likely to loose over 17 acres of land unjustly if the suit is not reinstated.
E. The exparte applicant should not suffer because of the errors of his lawyer.
3. The application is supported by the affidavit of L. Kimathi Kiara, the exparte applicant’s advocate. It says:
I, L. KIMATHI KIARA ADVOCATE OF P. O. Box 1243-60200 MERU, do make oath and state as follows:-
1. That I am an advocate of the High Court of Kenya and in conduct of this matter.
2. That this matter was fixed for mention on 6. 2.2018 for purposes of the respondent and interested parties to file replying affidavit.
3. That when the matter was called out in court I was absent.
4. That as I was driving from Meru town where my offices are located to Chuka town where the court is located a distance of 60 Kms my car broke down around Igoji area and I had to hike a matatu.
5. That by the time I arrived in court at around 11. 00pm I found the matter had been called out and dismissed for want of prosecution.
6. That I had asked the applicant to inform the court I was on the way if the matter is called in my absence.
7. That this suit is the only way option left to the applicant to redeem his land which the Tribunal irregularly allocated to the interested party and therefore if he is closed out at this juncture he is going to loose his land and thus suffer irreparable loss and damage.
8. That indeed this being a judicial review for an order of certiorari cannot be fixed a fresh as the six months allowed to file it have since expired.
9. That since this matter had been listed for mention I did not expect a dismissal and the worst that the court was supposed to give another date as the interested party and the respondent had not complied.
10. That I therefore beg the court to reinstate the main motion for hearing on merit.
11. That all what is deponed herein is true to the best of my knowledge, belief and understanding.
4. When the application came up for interpartes hearing, Mr. Kiara told the court that his car broke down on the day the suit was dismissed. He took a matatu and came to court late.
5. I accept the advocates explanation.
6. In the circumstances, the suit is reinstated.
7. The exparte applicant is directed to serve the following orders:-
a. The exparte applicant to serve upon the respondents the orders issued by the court today within 5 days of today.
b. The respondents and the Interested Party are directed to respond to the application within 30 days of today.
c. Parties will come to court for directions on 5. 3.2018
8. Costs shall be in the cause.
Delivered in open court at Chuka this 21st day of February, 2018 in the presence of:
CA: Ndegwa
Kimathi Kiara for the Exparte Applicant
Sophia Gatiria – Interested Party
P.M. NJOROGE
JUDGE