[2022] KEELC 2768 (KLR)
The court found that the Plaintiffs had provided a reasonable and satisfactory explanation for their failure to attend court and prosecute the suit, citing the transfer of the case between courts and the disruptions caused by the Covid-19 pandemic. The court emphasized that justice should not be sacrificed due to...
Source-derived case information.
- Citation
- [2022] KEELC 2768 (KLR)
- Parties
- Plaintiff: Korisa Kaitui Salaash; Plaintiff: Lamet Ene Laetua Salaash; Defendant: Julius Merite Partoti
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 79 of 2018
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application allowed; dismissal order set aside; suit reinstated.
- Judges
- MN Gicheru
- Legal Topics
- Setting Aside Orders, Want of Prosecution, Reinstatement of Suit, Court Discretion, Land Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Korisa Kaitui Salaash
Plaintiff
Lamet Ene Laetua Salaash
Plaintiff
Julius Merite Partoti
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the Plaintiffs. suit for want of prosecution should be set aside.
- 2 Whether the Plaintiffs have provided sufficient explanation for their non-attendance and delay in prosecuting the suit.
Ratio Decidendi
The court found that the Plaintiffs had provided a reasonable and satisfactory explanation for their failure to attend court and prosecute the suit, citing the transfer of the case between courts and the disruptions caused by the Covid-19 pandemic. The court emphasized that justice should not be sacrificed due to procedural errors or technicalities, especially where the Plaintiffs were not at fault. The court exercised its discretion to set aside the dismissal order, holding that the Plaintiffs deserved to have their case heard on its merits, particularly given the longstanding occupation of the disputed land by the Plaintiffs.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated.
Orders
- The order of dismissal dated 8/12/2021 is set aside.
- The Plaintiffs' suit is reinstated and shall be heard on its merits.
Full Case Text
Judgment text and source record
21 paragraphs
Salaash & another v Partoti (Environment & Land Case 79 of 2018) [2022] KEELC 2768 (KLR) (30 June 2022) (Ruling)
Neutral citation: [2022] KEELC 2768 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 79 of 2018
M N Gicheru, J
June 30, 2022
Between
Korisa Kaitui Salaash
1st Plaintiff
Lamet Ene Laetua Salaash
2nd Plaintiff
and
Julius Merite Partoti
Defendant
Ruling
1. This ruling is on the Notice of Motion dated 8/12/2021. The said motion which is under Order 12 Rule 7 Civil Procedure Rulesseeks to set aside the order dated 8th December, 2021 which dismissed the Plaintiffs’ suit under Order 17 Rule 2(1) Civil Procedure Rules for want of prosecution.The application is supported by five grounds and an eleven (11) paragraph affidavit sworn by Michael Wachira, an advocate of the High Court.In the grounds and the deposition, it is explained how the advocate’s internet system crashed as he was attempting to address the Court. By the time the system recovered, the suit had been mentioned in the counsel’s absence and had been dismissed.Counsel deposes that the Plaintiffs will be condemned unheard yet they are not to blame since the case was moved from Machakos to Kajiado making it difficult for the Plaintiffs’ counsel to trace the file.To compound the situation, Covid -19 came in and made access to justice complicated.For the above stated reasons, counsel prays that the application be allowed, the suit be reinstated and heard on merit.
2. The application is opposed by the Defendant Julius Meritei Partoti who urges that the order of dismissal remains because the Plaintiffs have never attended court since 28th July, 2018.
3. Only the Plaintiffs’ counsel filed written submissions on 5/4/2022. None were filed by the Defendant’s counsel.
4. I have carefully considered the application dated 8/12/2021 in its entirety including the affidavits, grounds and submissions. I have also perused the entire record.I find that it is fair and just that the order of dismissal dated 8/12/2021 be set aside.A mistake or an error should not be allowed to derail the course of justice. The Plaintiffs have given a good explanation as to why the case has taken long.The transfer from Machakos to Kajiado and then covid -19 which resulted in the interruption of normal Court schedules and activities are good reasons why no step was taken to expedite the conclusion of the case.Finally, what is at stake is land said to be occupied by the Plaintiffs since time immemorial. I find merit in the application of 8th December, 2021 and I allow it in its entirety.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 30TH DAY OF JUNE, 2022. M.N. GICHERUJUDGE