[2020] KEELC 40 (KLR)
The court found that although there was inordinate delay by the applicant in seeking reinstatement of the suit, the applicant was not properly served with the notice to show cause as it was served on the wrong firm of advocates. The principle of natural justice requires that a party be given an opportunity to be...
Source-derived case information.
- Citation
- [2020] KEELC 40 (KLR)
- Parties
- Applicant: Sara Anyiso Martins; Respondent: Shyam Sing Bansal Bansi Ram
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 43 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed; suit reinstated for hearing on the merits
- Judges
- TM Olando
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Adverse Possession, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Sara Anyiso Martins
Applicant
Shyam Sing Bansal Bansi Ram
Respondent
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 applicant was properly served with notice to show cause before dismissal.
- 3 Whether the delay in seeking reinstatement was inordinate and inexcusable.
Ratio Decidendi
The court found that although there was inordinate delay by the applicant in seeking reinstatement of the suit, the applicant was not properly served with the notice to show cause as it was served on the wrong firm of advocates. The principle of natural justice requires that a party be given an opportunity to be heard before dismissal for want of prosecution. The court exercised its discretion to set aside the dismissal and reinstate the suit, holding that the applicant ought to have been heard on the merits. Costs were ordered to be in the cause.
Court Disposition
application allowed; suit reinstated for hearing on the merits
Orders
- The order dismissing the suit for want of prosecution is set aside.
- The suit is reinstated for hearing and determination on merit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC 43 OF 2019 (O.S)
FORMERLY CIVIL SUIT NO. 15 OF 1991 (O.S)
IN THE MATTER OF LIMITATIONS OF ACTIONS ACT CAP 22 LAWS OF KENYA
AND
IN THE MATTER OF THE APPLICATION BY
SARA ANYISO MARTINS..................................PLAINTIFF/APPLICANT
VERSUS
SHYAM SING BANSAL BANSI RAM.........DEFENDANT/RESPONDENT
RULING
The Plaintiff/Applicant prays for an order for the honourable court setting aside of the orders made on 27/9/2017 dismissing the suit for want of prosecution and thereby reinstating the suit. The application is made on grounds that the Applicant was never informed of the said date when parties were required to appear before court and show cause why the matter should not be dismissed for want of prosecution.The then Applicant’s Advocate on record; M/s M. c. Ouma had indicated to the applicant on several occasions that the file was untraceable hence he was unable to set the matter down for hearing. The applicant being uneducated and oblivious of the legal procedures and technicalities believed the word of her advocate and remained patient awaiting further directions. On realizing that there was no update emanating from her then advocate on record, who insisted on the file being untraceable, the Applicant decided to seek assistance from the firm of M/s Otieno Yogo Ojuro & Co. Advocates for follow up on the matter. The said firm took up the matter from M/s Odhiambo Ouma and immediately commenced the search of the file at the registry. The applicant is still in possession of the suit property to date. it is therefore in the interest of justice that this Honourable Court allows this application as prayed in order to afford the Applicant her day in court.
That in all the circumstances of this case, for the ends of justice to be met and the Honour and dignity of this Honouralbe Court to be upheld, the Orders sought in this application ought to be granted.
The application is opposed on grounds that the Respondent is suffering irreparable loss occasioned by the delay and conduct of the Applicant. The Applicant removed all the Tenants of the Respondent and has since then refused to reinstate them despite the fact that the order granting adverse possession to the Applicant was set aside. The Applicant is unjustly using the suit property as a means of livelihood. The issue of irreparable damage suffered by the Applicant if the application is not granted cannot arise as the Applicant has benefited from the monthly rental immensely.
I have considered the application and do find that the suit was dismissed for want of prosecution on 27/9/2017. The Originating Summons was field on 16/1/1991. The applicant blames the failure to prosecute the case on her advocate and her ignorance of the law. This court finds that the plaintiff has not shown that she had any serious interest in the matter before it was dismissed in 2017.
Moreover, it took for almost 2 years to realize that the suit had been dismissed. I do find it inordinate delay to come to court after 2 years.
However, the applicant ought to have been given an opportunity to be heard before dismissing the suit for want of prosecution. it is not clear whether the applicant’s advocate was served with the notice to show cause. The notice to show cause was served upon Kasamani & Co. Advocates instead of Odhiambo Ouma & Company.
The upshot of the above is that I do exercise my discretion by allow the application and the suit is reinstated for hearing and determination on merit.
Costs in the cause.
DATED AND DELIVERED THIS 13th DAY OF MARCH, 2020.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
In the presence of:
M/S Martins for Yogo for applicant
Mr Odhiambo for respondent