[2019] KEELC 2396 (KLR)
The court found that there was no inordinate delay in bringing the application to set aside the dismissal, as the plaintiffs acted promptly upon learning of the dismissal. The court also noted that the plaintiffs were not served with the Notice To Show Cause, which is a procedural requirement before dismissal for...
Source-derived case information.
- Citation
- [2019] KEELC 2396 (KLR)
- Parties
- Plaintiff: Ruth Cheruiyot; Plaintiff: Henry Cheruiyot; Defendant: Samuel Soitanae Ole Koriata; Defendant: Peter Ole Koriata
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 32 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit reinstated.
- Judges
- MN Kullow
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Notice to Show Cause, Delay and Laches
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Cheruiyot
Plaintiff
Henry Cheruiyot
Plaintiff
Samuel Soitanae Ole Koriata
Defendant
Peter Ole Koriata
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the plaintiffs were served with Notice To Show Cause prior to dismissal.
- 3 Whether there was inordinate delay in filing the application for reinstatement.
Ratio Decidendi
The court found that there was no inordinate delay in bringing the application to set aside the dismissal, as the plaintiffs acted promptly upon learning of the dismissal. The court also noted that the plaintiffs were not served with the Notice To Show Cause, which is a procedural requirement before dismissal for want of prosecution. Given the nature of the dispute involving land, the court held that it would be just and fair to reinstate the suit and allow the plaintiffs another opportunity to prosecute their case. The application to set aside the dismissal was therefore allowed, and the suit reinstated, with a direction that the plaintiffs fix the suit for hearing within 60 days.
Court Disposition
Application allowed; suit reinstated.
Orders
- The Notice of Motion dated 5th December, 2018 is allowed.
- The suit is reinstated.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ENVIRONMENT AND LAND CASE NO. 32 OF 2017
RUTH CHERUIYOT....................................................1ST PLAINTIFF
HENRY CHERUIYOT................................................2ND PLAINTIFF
VERSUS
SAMUEL SOITANAE OLE KORIATA.................1ST DEFENDANT
PETER OLE KORIATA..........................................2ND DEFENDANT
RULING
By an Application dated 5th December, 2018 the Plaintiff/Applicant sought for orders to set aside and reinstatement of their suit that was dismissed for want of prosecution which application was based on the grounds that they have been keen and vigilant to prosecute the suit and that they were never served with the Notice To Show Cause why the suit should not be dismissed for want of prosecution.
The Application was supported by the Affidavit of Mabachi Stephen who deponed that they sent a letter to the court on 11th April, 2017 to inquire about the suit herein but did not get any response and when they wanted to have the matter fixed for hearing that they learnt of its dismissal and that prior to the above they did not receive a Notice To Show Cause and if the orders for dismissal is not set aside, they will suffer loss.
The application was opposed by the Respondents by way of grounds of opposition and stated that the Applicants are guilty of laches as the Application was filed on 5th December, 2017 when the suit was dismissed on 16th March, 2017 and that they have never been keen to prosecute the same.
I have considered the application before me and the submissions filed and the question of reinstatement of a suit is now settled. In the instant application I find that there was no inordinate delay in the institution of the application to set aside the order for dismissal and further that since the applicant is now before the court I will accord them the benefit of doubt taking into account that the matter before the court is one involving land it will be just and fair and in the interest of justice the Applicant is accorded another opportunity.
From the above reasons, I will allow the Notice of Motion dated 5th December, 2018 and reinstate the suit and order that the Applicant do fix the suit for hearing within the next 60 days.
DATED, SIGNED and DELIVERED in open court at NAROK on this 15th day of July, 2019
Mohammed Noor Kullow
Judge
15/7/19
In the presence of: -
Counsel for the Defendants-present
N/A for the Plaintiffs
CA:Chuma
Mohammed Noor Kullow
Judge
15/7/19