[2017] KEELC 2293 (KLR)
The court found that the applicant's advocate had provided a satisfactory explanation for his absence when the suit was dismissed, namely that he was attending to another matter in the High Court at Chuka. The court held that in the interests of justice, the dismissal order issued on 15th March, 2017 should be...
Source-derived case information.
- Citation
- [2017] KEELC 2293 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman of the Arbitration Board, Tharaka Adjudication Area, Gatunga Adjudication Section; Respondent: Land Adjudication Officer, Tharaka Adjudication Area, Gatunga Adjudication Section; Interested Party: Tharaka County Council; Applicant: Mbugi Kirakura
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- ? 04 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit reinstated; substitution of party granted; costs to interested party.
- Judges
- FM Njoroge
- Legal Topics
- Judicial Review, Land Adjudication, Reinstatement of Suit, Certiorari, Prohibition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman of the Arbitration Board, Tharaka Adjudication Area, Gatunga Adjudication Section
Respondent
Land Adjudication Officer, Tharaka Adjudication Area, Gatunga Adjudication Section
Respondent
Tharaka County Council
Interested Party
Mbugi Kirakura
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal order issued on 15th March, 2017 should be set aside and the suit reinstated.
- 2 Whether the ex parte applicant should be allowed to substitute the County Council of Tharaka with the County Government of Tharaka Nithi.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the applicant's advocate had provided a satisfactory explanation for his absence when the suit was dismissed, namely that he was attending to another matter in the High Court at Chuka. The court held that in the interests of justice, the dismissal order issued on 15th March, 2017 should be vacated and the suit reinstated. The court also allowed the oral application to substitute the County Council of Tharaka with the County Government of Tharaka Nithi, recognizing the change in legal status of the interested party. Costs of the application were awarded to the interested party, to be in the cause.
Court Disposition
Application allowed; suit reinstated; substitution of party granted; costs to interested party.
Orders
- The dismissal order issued on 15th March, 2017 is vacated and the suit is reinstated.
- The ex parte applicant is allowed to substitute the County Council of Tharaka with the County Government of Tharaka Nithi.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA MISC. JUDICIAL REVIEW CASE NO 04 OF 2017
IN THE MATTER OF AN APPLICATION BY MBUGI KIRAKURA FOR ORDERS OF CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF SECTION 8 & 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA
AND
IN THE MATTER OF LAND COMMITTEE CASE NO. 94/05, 92/05, 232/05, 22/05, 209/05, 228/05
AND
IN THE MATTER OF ARBITRATION BOARD CASES NUMBER 157/08, 158/08, 159/08, 161/08 166/08
AND
IN THE MATTER OF PARCELNO.216 – THARAKA ADJUDICATION AREA, GATUNGA ADJUDICATION SECTION
AND
REPUBLIC………….……………………...................................…...………APPLICANT
VERSUS
THE CHAIRMAN OF THE ARBITRATION BOARD,THARAKA
ADJUDICATION AREA, GATUNGA ADJUDICATION SECTION.....1ST RESPONDENT
THE LAND ADJUDICATION OFFICER, THARAKA ADJUDICATION AREA,
GATUNGA ADJUDICATION SECTION……...............................……2ND RESPONDENT
THARAKA COUNTY COUNCIL………………................................INTERESTED PARTY
EX-PARTE……………………………………...............................…..MBUGI KIRAKURA
RULING
1. This application is dated 15th March, 2017 and seeks orders;
1. THAT this matter be certified urgent and be heard on priority basis.
2. THAT this Honorable Court be pleased to set-aside the order dismissing the suit on 15. 3.2017 on such terms as it may deem fit and proper in the interests of justice.
3. THAT the costs be in the cause.
2. The application is supported by the affidavit of MUIA MWANZIA, the exparte applicant’s advocate and has the following grounds:
a. THAT the suit should be heard on merits.
b. THAT it is fair, just, equitable and in the interests of justice that this application be preferred.
3. The application was canvassed on 21st June, 2017.
4. I accept Mr Mwanzia’s explanation that he was attending to another suit in the High Court at Chuka when this suit was dismissed.
5. In the circumstances the dismissal order issued on 15th March, 2017 is vacated with the effect that the suit is reinstated forth.
6. The oral application that the exparte applicant substitutes the County Council of Tharaka with the County Government of Tharaka Nithi is allowed.
7. The exparte applicant should file his submissions with regard to the main motion within 21 days of today and the other parties should do so within 30 days after receipt of the exparte applicant’s submissions.
8. Directions on 19th September, 2017
9. Costs of this application, to be in the cause, awarded to the interested party.
10. It is so ordered.
Delivered at Chuka this 21st day of June, 2017 in the presence of:
CA: Ndegwa
Mwanzia for the Exparte applicant
Miss Kungu for 1st and 2nd Respondents
Kiautha Arithi for the interested party
P. M. NJOROGE
JUDGE