[2014] KEELC 402 (KLR)
The court found that the appellant's advocate had provided a satisfactory explanation for her absence on the hearing date, supported by medical notes confirming her illness and inability to attend court. The miscommunication regarding the presiding judge and the attempt to have a colleague hold her brief further...
Source-derived case information.
- Citation
- [2014] KEELC 402 (KLR)
- Parties
- Appellant: Samuel Kalama Nzaro; Respondent: Kalama Nzaro Majaliwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 55 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- Application allowed; dismissal order set aside; appeal and stay orders reinstated; no order as to costs.
- Judges
- OA Angote
- Legal Topics
- Setting Aside Dismissal, Reinstatement of Appeal, Non Attendance, Application for Stay, Land Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kalama Nzaro
Appellant
Kalama Nzaro Majaliwa
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the dismissal of the appeal for non-attendance should be set aside.
- 2 Whether the stay orders previously issued should be reinstated.
- 3 Whether the appeal should be reinstated for further proceedings.
Ratio Decidendi
The court found that the appellant's advocate had provided a satisfactory explanation for her absence on the hearing date, supported by medical notes confirming her illness and inability to attend court. The miscommunication regarding the presiding judge and the attempt to have a colleague hold her brief further demonstrated that the absence was not intentional or due to negligence. In the absence of opposition from the respondent and in the interest of justice, the court exercised its discretion to set aside the dismissal order, reinstate the stay orders, and allow the appeal to proceed to hearing.
Court Disposition
Application allowed; dismissal order set aside; appeal and stay orders reinstated; no order as to costs.
Orders
- The dismissal order made on 9th December 2013 is set aside.
- The stay orders issued on 26th October 2011 are reinstated.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
HIGH COURT CIVIL APPEAL NO.55 OF 2010
(formerly Mombasa Tribunal Land Appeal No. 165 of 2001)
SAMUEL KALAMA NZARO..............................................PLAINTIFF
=VERSUS=
KALAMA NZARO MAJALIWA.......................................DEFENDANT
R U L I N G
What is before me is the Appellant's Application dated 17th December 2013 filed pursuant to the provisions of Order 12 Rule 7 of the Civil Procedure Rules. The Application is seeking for the following orders:
a) That the dismissal order made on 9th December 2013 dismissing the appeal for non-attendance be set aside.
b) That the stay orders issued by the Honourable Court on the 26th October 2011 be reinstated.
c) That the appeal be reinstated for further proceedings.
d) That costs to be in the cause.
The Application is premised on the grounds that the Appeal was dismissed for non-attendance on 9th December, 2013 when it was listed for hearing: that counsel for the Appellant did not attend court on 9th December, 2013 for good cause and that it is in the interest of justice that the appeal be reinstated.
According to the deposition of the Appellant’s advocate, she fell ill on 6th December, 2013 and was put on bed rest hence was unable to travel to Malindi for hearing on 9th December 2013.
Although the Appellant's counsel informed his colleague to hold his brief, she misdirected him that the matter was listed before Meoli J which was not the position. By the time her colleague found out that the matter was listed before this court, the same had been dismissed for non-attendance.
The Respondent did not file a Replying Affidavit although he was served with the Application.
I have perused the medical notes annexed on the Supporting Affidavit. The said notes show that indeed the Appellant's counsel was indisposed on 9th December 2013 and could therefore not attend court.
In the circumstances, I find that the Appellant's advocate has shown a good cause why she was unable to attend court on 9th December, 2013. I shall, which I hereby do, allow the Appellant's Application dated 17th December 2013 as prayed with no order as to costs.
Dated and delivered in Malindi this 9th day of May,2014.
O. A. Angote
JUDGE