[2018] KEELC 1547 (KLR)
The court found that the application to set aside the dismissal and reinstate the suit lacked merit. The applicant failed to demonstrate that she was not served with the Notice to Show Cause, as her advocate on record had been served. Furthermore, the application for reinstatement was filed one and a half years...
Source-derived case information.
- Citation
- [2018] KEELC 1547 (KLR)
- Parties
- Plaintiff: Rosalid Julia Ngugi Murungi (on behalf of deceased estate of Jamlick Njagi); Defendant: Washington Rwigi; Defendant: Humphrey Muchiri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 56 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Notice to Show Cause, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosalid Julia Ngugi Murungi (on behalf of deceased estate of Jamlick Njagi)
Plaintiff
Washington Rwigi
Defendant
Humphrey Muchiri
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated.
- 2 Whether the plaintiff was properly served with the Notice to Show Cause prior to dismissal.
- 3 Whether the delay in filing the application for reinstatement was inordinate and inexcusable.
Ratio Decidendi
The court found that the application to set aside the dismissal and reinstate the suit lacked merit. The applicant failed to demonstrate that she was not served with the Notice to Show Cause, as her advocate on record had been served. Furthermore, the application for reinstatement was filed one and a half years after the dismissal, which constituted inordinate and unexplained delay. The court emphasized that it is the responsibility of litigants to prosecute their cases diligently. As a result, the court dismissed the application for reinstatement.
Court Disposition
application dismissed
Orders
- The application to set aside the dismissal and reinstate the suit is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 56 OF 2017
FORMERLY MERU ELC CASE NO.67 OF 2015
ROSALID JULIA NGUGI MURUNGI (ON BEHALF
OF DECEASED ESTATE OF JAMLICK NJAGI........................PLAINTIFF
VERSUS
WASHINGTON RWIGI..........................................................1st DEFENDANT
HUMPHREY MUCHIRI......................................................2ND DEFENDANT
RULING
1. This application is dated 15th August, 2018 and seeks the following orders:
1. That the honourable court be pleased to set aside the dismissal orders herein dated 5th April, 2017 and reinstate this suit to be heard on merit.
2. That costs of this application be in the cause.
2. The application has the following grounds:
1. That this suit was dismissed on 5. 7.2017 for want of prosecution.
2. That the plaintiff was not served with the N.T.S.C.
3. That the plaintiff has interest in this land hence prayer for reinstatement.
4. That this application will not prejudice the previous defendants or current respondent in any way.
3. The application is supported by the affidavit of the applicant sworn on15th August, 2018 which states:
1. That I am the plaintiff herein hence capable of swearing this affidavit.
2. That this suit was dismissed on 5th July, 2017 for want of prosecution.
3. That none of the parties was present.
4. That I was not served with the N.T.S.C. for that day.
5. That there has been a plan to hide me from the proceedings of this case by my opponents.
6. That I have interest in this estate since my late husband left for me several properties including land so that is why I am eager to prosecute this case hence this application.
7. That if this suit is not reinstated I will definitely become a destitute because right now the defendants have chased me from the suit land and I live in rental rooms.
8. That if this application is not granted the defendants will continue to squander my late husband’s properties with impunity.
9. That I now pray for this application to be allowed.
10. That what is deponed herein is true to the best of my knowledge and information.
4. Miss Wambulwa for the applicant asked the court to allow the application on the ground that she had not been served with a Notice to show cause. All along the applicant had an advocate who was served with the Notice to show cause.
5. The suit was dismissed on 5th April, 2017, one and a half years ago. This shows that there was inordinate delay in the filing of this application. It is the duty of every litigant to ensure that his or her suit is prosecuted diligently. I find that this application lacks merit.
6. In the circumstances this application is dismissed.
7. I issue no order as to costs.
8. It is so ordered.
Delivered in open Court at Chuka this 3rd day of October, 2018
in the presence of:
CA: Ndegwa
Miss Wambulwa h/b Ogoti for the plaintiff
Defendants not present
P.M. NJOROGE
JUDGE