[2018] KEELC 3466 (KLR)
The court found that the plaintiff's failure to prosecute the suit was due to a reasonable and understandable cause: the lack of notification regarding the new case file reference after the matter was transferred. The plaintiff's counsel had made efforts to trace the file, as evidenced by the letter to the court,...
Source-derived case information.
- Citation
- [2018] KEELC 3466 (KLR)
- Parties
- Plaintiff: Samuel Odhingo Were; Defendant: John Otieno Wera
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 629 of 2015
- Procedural Posture
- Notice of Motion / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed. Dismissal order set aside. Suit reinstated.
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Order 17 Rule 2 Civil Procedure Rules, Case File Reference Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Odhingo Were
Plaintiff
John Otieno Wera
Defendant
Procedural Posture
Notice of Motion / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal order of 20th March 2017 should be set aside and the suit reinstated.
- 2 Whether the plaintiff's explanation for failure to prosecute the suit is reasonable and sufficient.
Ratio Decidendi
The court found that the plaintiff's failure to prosecute the suit was due to a reasonable and understandable cause: the lack of notification regarding the new case file reference after the matter was transferred. The plaintiff's counsel had made efforts to trace the file, as evidenced by the letter to the court, and the explanation for the delay was not rebutted by the defendant. In the absence of any opposition and given the satisfactory explanation, the court exercised its discretion to set aside the dismissal order and reinstate the suit.
Court Disposition
Application allowed. Dismissal order set aside. Suit reinstated.
Orders
- The dismissal order of 20th March 2017 is set aside.
- The originating summons is reinstated.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO.629 OF 2015
SAMUEL ODHINGO WERE..............................................PLAINTIFF
VERSUS
JOHN OTIENO WERA..................................................DEFENDANT
RULING
1. Samuel Odhingo Were, the Plaintiff, vide notice of motion dated 14th June 2017, seeks for the dismissal order made on the 20th March 2017 to be set aside and the suit reinstated. The application is based on the nine (9) grounds on its face marked (a) to (i) and supported by his affidavit sworn on the 14th June 2017 among others, attaching a letter done by his advocate addressed to the Deputy Registrar dated 13th July 2017 and received by the court on the 17th January 2017.
2. The application was duly served on John Otieno Wera, the Defendant, who appeared in court on the 20th November 2017. That the court gave the Defendant time to file and serve his replying papers and adjourned the hearing to the 14th March 2018 but none was filed.
3. The court carefully considered the grounds on the notice of motion, the affidavit evidence, the pleadings filed and come to the following determination;
a) That though the notice to show cause dated 17th November 2016 was set for hearing on the 20th March 2017, none of the parties attended court. The suit was dismissed for failure to take steps for more than one year under Order 17 Rule 2 of Civil Procedure Rules.
b) That the Plaintiff’s affidavit evidence, which has not been rebutted or controverted, shows that the counsel for the Plaintiff had on the 13th January 2017 done a letter to the court that was received on the 17th January 2017 seeking for assistance to trace the file. The letter refers to the reference of Kisumu H CC NO.5 of 2011(OS), which was the former reference of the suit before transiting to Kisumu ELC NO.629 of 2015.
c) That the Plaintiff’s explanation that the failure to notify him and his counsel of the new case file reference may have caused the delay in tracing the file and taking of action to prosecute the case is not only reasonable but also understandable.
4. That for reasons set out above the Plaintiff’s notice of motion dated the 14th June 2017, and filed on the 30th June 2017 has merit and is allowed with costs in the cause. The dismissal order of 20th March 2017 is hereby set aside and the originating summons reinstated.
Orders Accordingly.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 2ND DAY OF MAY 2018
In presence of;
Plaintiff Present
Defendant Absent
Counsel Mr. Kulundu for Mr. Athung’a for Plaintiff
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE