[2020] KEELC 3768 (KLR)
The court found that the Plaintiff's advocate's failure to attend court on 2nd July, 2019 was due to an inadvertent and bona fide error, as evidenced by the diary extract showing the matter was misdiarized for 3rd July, 2019. The court exercised its discretion in favour of the Plaintiff, noting that the mistake was...
Source-derived case information.
- Citation
- [2020] KEELC 3768 (KLR)
- Parties
- Plaintiff: Sammy Mutua Muswii; Defendant: Njoki Elizabeth Wambugu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case 22 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application allowed. Orders of 2nd July, 2019 set aside. Plaintiff's application dated 6th June, 2019 reinstated for hearing.
- Judges
- OA Angote
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Mutua Muswii
Plaintiff
Njoki Elizabeth Wambugu
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the court should set aside its orders made on 2nd July, 2019 dismissing the Plaintiff's application for want of prosecution.
- 2 Whether the Plaintiff's application dated 6th June, 2019 should be reinstated for hearing on its merits.
Ratio Decidendi
The court found that the Plaintiff's advocate's failure to attend court on 2nd July, 2019 was due to an inadvertent and bona fide error, as evidenced by the diary extract showing the matter was misdiarized for 3rd July, 2019. The court exercised its discretion in favour of the Plaintiff, noting that the mistake was not deliberate and that the Defendant did not oppose the application. Consequently, the court allowed the application to set aside its previous dismissal order and reinstated the Plaintiff's application for hearing on its merits.
Court Disposition
Application allowed. Orders of 2nd July, 2019 set aside. Plaintiff's application dated 6th June, 2019 reinstated for hearing.
Orders
- The orders made on 2nd July, 2019 are set aside.
- The Plaintiff's application dated 6th June, 2019 is reinstated for hearing and determination on merit.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. MISC. APPLN. NO. 22 OF 2015
SAMMY MUTUA MUSWII.....................................................PLAINTIFF
VERSUS
NJOKI ELIZABETH WAMBUGU......................................DEFENDANT
RULING
1. In the Notice of Motion dated 18th January, 2019, the Plaintiff is seeking for the following orders:
a. The Honourable Court be pleased to set aside its own orders made on the 2nd July, 2019.
b. The Plaintiff’s Application dated 6th June, 2019 be reinstated for hearing and determination on merit.
2. The Application is supported by the Affidavit of the Plaintiff’s advocate who has deponed that this suit was fixed for hearing of the Application dated 6th June, 2019 on the 2nd July, 2019; that their clerk misdiarized the matter as coming up for hearing on 3rd July, 2019 and that when she attended court on 3rd July, 2017, she realized the matter was not cause-listed.
3. The Plaintiff’s advocate finally deponed that the failure to attend court on 2nd July, 2019 was entirely a mistake on her office.
4. The Plaintiff’s Application was not opposed.
5. This suit was struck out by the court by way of a Judgment dated 24th May, 2015. The Plaintiff then filed an Application dated 6th June, 2019 seeking to review the Judgment of the court. When the Application came up for hearing on 2nd July, 2019, neither the Plaintiff nor his advocate were in court. The court dismissed the Application for want of prosecution.
6. The Plaintiff’s advocate has deponed in her Affidavit that the reason why she did not attend court on 2nd July, 2019 was because the clerk had diarized the Application for 3rd July, 2019 instead of 2nd July, 2019. The extract of her diary shows that indeed the Application was diarized for hearing on 3rd July, 2019.
7. The Plaintiff’s advocate’s reason for not attending court on 2nd July, 2019 was due to an inadvertent bona fide error on her part. I shall therefore exercise my discretion in her favour by allowing the Application.
8. For those reasons, I allow the Application dated 18th July, 2019 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 31ST DAY OF JANUARY, 2020.
O.A. ANGOTE
JUDGE