[2019] KEELC 2823 (KLR)
The court found that the applicant's explanation for non-attendance, namely that her advocate was delayed by heavy traffic, was not controverted by the respondent. The court held that the mistake or inadvertence of counsel should not be visited upon the litigant, particularly where the explanation is reasonable and...
Source-derived case information.
- Citation
- [2019] KEELC 2823 (KLR)
- Parties
- Plaintiff: Rose Chepkoech Rotich; Defendant: Elias Kiplagat Busienei
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 376 of 2014
- Procedural Posture
- Review Application / Ruling on Application for Review and Reinstatement
- Outcome
- application allowed
- Judges
- A Ombwayo
- Legal Topics
- Review of Court Orders, Reinstatement of Application, Dismissal for Non Attendance, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Chepkoech Rotich
Plaintiff
Elias Kiplagat Busienei
Defendant
Procedural Posture
Review Application / Ruling on Application for Review and Reinstatement
Legal Issues
- 1 Whether the order dismissing the plaintiff's application dated 22nd May, 2018 should be reviewed and set aside.
- 2 Whether the plaintiff's application dated 22nd May, 2018 should be reinstated for hearing on merit.
- 3 Whether the late arrival of the plaintiff's advocate constitutes sufficient cause for non-attendance.
Ratio Decidendi
The court found that the applicant's explanation for non-attendance, namely that her advocate was delayed by heavy traffic, was not controverted by the respondent. The court held that the mistake or inadvertence of counsel should not be visited upon the litigant, particularly where the explanation is reasonable and unchallenged. The court further found that the interests of justice and fairness warranted the review and setting aside of the dismissal order. Consequently, the court granted the application, reviewed and set aside the dismissal order of 23rd July, 2018, and reinstated the plaintiff's application dated 22nd May, 2018 for hearing and determination on merit. Costs were ordered...
Court Disposition
application allowed
Orders
- The order dismissing the plaintiff's application dated 22nd May, 2018 is reviewed and set aside.
- The plaintiff's application dated 22nd May, 2018 is reinstated and shall be set down for hearing and determination on merit.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 376 OF 2014
ROSE CHEPKOECH ROTICH.......................................PLAINTIFF
VERSUS
ELIAS KIPLAGAT BUSIENEI.....................................DEFENDANT
RULING
Rose Chepkoech Rotich prays for orders that the order dismissing application dated 22. 5.2018 be reviewed and set aside and that the order of 23. 7.2018 be set aside. The application dated 22. 5.2018 be reinstated and be set down for hearing and determination on merit.
The application is based on grounds that the plaintiff/applicant filed application on 22nd May, 2018 seeking for temporary orders of stay of execution of the decree herein pending the hearing of the said application and eventually the intended lodged appeal. That the plaintiff’s/applicant’s application dated 22nd May, 2018 was fixed for interparties hearing on 23rd July, 2018.
That the said application was dismissed 23rd July, 2018 for the reason that the plaintiff’s/applicant’s advocate arrived in court when the matter had already been called and/or dismissed for want of prosecution and/or non-attendance.
That the plaintiff’s/applicant’s advocate late arrival in court should not be visited upon the plaintiff/applicant.
That the application be allowed in the interest of justice and fairness.
That if the dismissal orders of 23rd July, 2018 are not reviewed and/or set aside, the plaintiff/applicant will greatly suffer prejudice. The applicant states that his advocate did not reach court in time due to heavy traffic jam.
The respondent filed grounds of opposition that the applicant is guilty of laches having brought the application for reinstatement after inordinate delay. That the applicant has not demonstrated any reasons sufficient to warrant grant of the orders of reinstatement and/or review sought.
That the said application is vexatious, frivolous, devoid of any merit and amounts to an abuse of the due process of this Honourable court hence the same ought to be dismissed forthwith with costs. That the application does not meet threshold to be reinstated by the oxygen principle or Article 159 of the Constitution of Kenya, 2010.
I do find that the allegation that the applicant’s counsel was held in traffic jam and therefore, could not attend court as scheduled is not controverted.
I do grant the applicant prayers that the orders herein dismissing the plaintiff’s application dated 22nd May, 2018 herein be reviewed and/or set aside.
The plaintiff’s application dated 22nd May, 2018 be and is hereby reinstated and it be set down for hearing and determination on merit. Costs in the cause.
Dated and delivered at Eldoret this 31st day of May, 2019.
A. OMBWAYO
JUDGE