[2018] KEELC 3781 (KLR)
The court found that there was no evidence that the applicant or his advocate had been served with the hearing notice for 2.11.2017, the date on which the suit was dismissed for non-attendance. Although the applicant had previously been given an opportunity to prosecute the case and had shown little enthusiasm, the...
Source-derived case information.
- Citation
- [2018] KEELC 3781 (KLR)
- Parties
- Applicant: Rufus M’Naivasha M’Miriti; Respondent: The Meru South District Land Dispute Tribunal; Interested Party: Julius Miriti Sebastiano
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 85 of 2011
- Procedural Posture
- Judicial Review / Application for Reinstatement of Suit Dismissed for Non Attendance
- Outcome
- Application for reinstatement allowed.
- Legal Topics
- Reinstatement of Suit, Service of Process, Dismissal for Non Attendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rufus M’Naivasha M’Miriti
Applicant
The Meru South District Land Dispute Tribunal
Respondent
Julius Miriti Sebastiano
Interested Party
Procedural Posture
Judicial Review / Application for Reinstatement of Suit Dismissed for Non Attendance
Legal Issues
- 1 Whether the applicant was properly served with the hearing notice for 2.11.2017.
- 2 Whether the suit should be reinstated after dismissal for non-attendance.
Ratio Decidendi
The court found that there was no evidence that the applicant or his advocate had been served with the hearing notice for 2.11.2017, the date on which the suit was dismissed for non-attendance. Although the applicant had previously been given an opportunity to prosecute the case and had shown little enthusiasm, the lack of proper service was a fundamental procedural flaw. The court exercised its discretion to reinstate the suit, emphasizing the importance of service and the right to be heard, and allowed the application for reinstatement without orders as to costs.
Court Disposition
Application for reinstatement allowed.
Orders
- The application dated 14.11.2017 is allowed with no orders as to costs.
- All parties to file their documents including response to the motion within 21 days from the date of delivery of this ruling.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
JUDICIAL REVIEW NO. 85 OF 2011
RUFUS M’NAIVASHA M’MIRITI..........................................APPLICANT
VERSUS
THE MERU SOUTH DISTRICT LAND
DISPUTE TRIBUNAL..............................................................DEFENDANT
JULIUS MIRITI SEBASTIANO..............................INTERESTED PARTY
RULING
1. This ruling is in respect of the application dated 14. 11. 2017.
2. Applicant who is the exparte applicant in the suit prays for the reinstatement of the suit which was dismissed on 2. 11. 2017.
3. Exparte applicant avers that he was never served with the hearing notice of 2. 11. 2017
4. A perusal of the record shows that the hearing notice for the date of 2. 11. 2017 appears to have been served only upon the Attorney General and the counsel for the interested party. There is no evidence of service upon the exparte applicant’s or his advocate.
5. It is however not lost to this court that earlier on, the matter had been listed for notice to show cause as to why the suit should not be dismissed. In a ruling delivered by the court on 10. 11. 2016, the ex-applicant was given a chance to prosecute the case. This being a 2011 matter, I find no enthusiasm on the part of the applicant to have the matter prosecuted. Nevertheless, I will allow the application on the following terms;
(i) The application of 14. 11. 2017 is allowed with no orders as to costs.
(ii) All parties to file their documents including response to the motion within 21 days from date of delivery of this ruling.
(iii) The suit is to be set down for hearing.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 11th APRIL, 2018
IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Miss Mwiraria holding brief for Kiogora for Exparte Applicant – present
Attorney General for Respondent - absent
HON. LUCY. N. MBUGUA
ELC JUDGE