[2019] KEELC 726 (KLR)
The court found that the Plaintiff was not personally served with the notice to show cause why the suit should not be dismissed for want of prosecution, as the notice was served on his former advocates who had already ceased acting. This procedural lapse resulted in the Plaintiff being condemned unheard, contrary to...
Source-derived case information.
- Citation
- [2019] KEELC 726 (KLR)
- Parties
- Plaintiff: Reuben Kavithi Kyungu (Suing as the Administrator of the Estate of Daniel Kyungu Muasya); Defendant: Phillip Kivuva Nzioka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 217 of 2010
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application allowed; suit reinstated.
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Process, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Reuben Kavithi Kyungu (Suing as the Administrator of the Estate of Daniel Kyungu Muasya)
Plaintiff
Phillip Kivuva Nzioka
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution without personal service of the notice to show cause on the Plaintiff was proper.
- 2 Whether the Plaintiff is entitled to reinstatement of the suit to be heard on its merits.
Ratio Decidendi
The court found that the Plaintiff was not personally served with the notice to show cause why the suit should not be dismissed for want of prosecution, as the notice was served on his former advocates who had already ceased acting. This procedural lapse resulted in the Plaintiff being condemned unheard, contrary to the principles of natural justice and the right to a fair hearing. The court held that such a dismissal, effected without proper service, cannot stand. Consequently, the court allowed the Plaintiff's application to set aside the dismissal and ordered the reinstatement of the suit for hearing on its merits.
Court Disposition
Application allowed; suit reinstated.
Orders
- The proceedings of 28th September, 2018 dismissing the suit for want of prosecution are set aside.
- The Plaintiff's case is reinstated for hearing on its merits.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 217 OF 2010
REUBEN KAVITHI KYUNGU (Suing as the Administrator of the
Estate of DANIEL KYUNGU MUASYA)..............................................PLAINTIFF
VERSUS
PHILLIP KIVUVA NZIOKA..............................................................DEFENDANT
RULING
1. In the Notice of Motion dated 2nd July, 2019, the Plaintiff is seeking for the following orders:
a.That the court does set aside the proceedings of 28th September, 2018 and reinstate the Plaintiff’s case for hearing on its merits.
b.That upon grant of prayer 1 above, the court do fix a hearing date in court on priority basis.
c.The costs of the Application be in cause.
2. The Application is premised on the grounds that the Plaintiff filed the suit through the firm of Nduva Kitonga & Co. Advocates; that subsequently, the said firm ceased acting for him; that the Plaintiff managed to raise funds and instructed his current advocates and that the said law firm was later informed that the suit was dismissed on 28th September, 2018 for want of prosecution.
3. The Plaintiff deponed that the case was dismissed for want of prosecution without giving him notice; that he was condemned unheard and that he did not prosecute the suit due to lack of money The Defendant did not oppose the Application.
4. The record shows that this suit was filed on 22nd October, 2010 seeking for a declaration that the late Daniel Kyungu Muasya is the owner of land known as Machakos Town Block 1/127. The Defendant entered appearance and filed his Defence on 29th November, 2010.
5. The record further shows that on 28th October, 2010, the Plaintiff’s advocate argued his Application dated 15th November, 2014 to cease acting for the Plaintiff. On the said date, the court allowed the Plaintiff’s advocate’s Application. The record further shows that the Plaintiff was in court on 28th October, 2016 when the Application dated 15th November, 2014 was allowed.
6. The Notice to show cause why the suit should not be dismissed for want of prosecution dated 25th July, 2018 was served on the Plaintiff’s former advocate, Nduva Kitonga and Company advocates. It would appear that by the time the said notice was served, the court clerk was not aware that the Plaintiff’s advocate had ceased to act for the Plaintiff.
7. To the extent that the Plaintiff was not personally served with the Notice to show cause why the suit should not be dismissed for want of prosecution, he was condemned unheard. Consequently, I allow the Application dated 2nd July, 2019 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 15TH DAY OF NOVEMBER, 2019.
O.A. ANGOTE
JUDGE