[2013] KEHC 2111 (KLR)
The court found that the applicant's failure to attend court was due to circumstances beyond their control, specifically a riot that caused a significant traffic delay. The explanation provided by the applicant's counsel was unchallenged. The court emphasized that substantive justice should prevail over...
Source-derived case information.
- Citation
- [2013] KEHC 2111 (KLR)
- Parties
- Applicant: Sayialei Ole Koilei; Respondent: Land Registrar, Kajiado; Respondent: Senior Resident Magistrate, Kajiado; Respondent: Chairman Land Dispute Tribunal, Kajiado; Respondent: Attorney General; Interested Party: Daniel Monirei
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Petition 357 of 2012
- Procedural Posture
- Constitutional Petition / Ruling on Application for Reinstatement of Application and Conservatory Orders
- Outcome
- Application for reinstatement allowed; conservatory orders reinstated.
- Judges
- LN Mutende
- Legal Topics
- Conservatory Orders, Reinstatement of Application, Right to Be Heard, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sayialei Ole Koilei
Applicant
Land Registrar, Kajiado
Respondent
Senior Resident Magistrate, Kajiado
Respondent
Chairman Land Dispute Tribunal, Kajiado
Respondent
Attorney General
Respondent
Daniel Monirei
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Application for Reinstatement of Application and Conservatory Orders
Legal Issues
- 1 Whether the application for reinstatement of the dismissed application should be allowed.
- 2 Whether conservatory orders previously granted should be reinstated.
- 3 Whether the applicant's failure to attend court was excusable under the circumstances.
Ratio Decidendi
The court found that the applicant's failure to attend court was due to circumstances beyond their control, specifically a riot that caused a significant traffic delay. The explanation provided by the applicant's counsel was unchallenged. The court emphasized that substantive justice should prevail over technicalities, as enshrined in Article 159(2)(d) of the Constitution. Consequently, the court allowed the reinstatement of the dismissed application and the conservatory orders, holding that justice would best be served by allowing the matter to proceed on its merits rather than being dismissed on a procedural technicality.
Court Disposition
Application for reinstatement allowed; conservatory orders reinstated.
Orders
- The application dated 24th September, 2012 is reinstated.
- The conservatory order issued on 25th September, 2012 is reinstated pending hearing and determination of the application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
PETITION NO. 357 OF 2012
SAYIALEI OLE KOILEI………………………………………………..PETITIONER
VERSUS
LAND REGISTRAR, KAJIADO………………………………..1ST RESPONDENT
SENIOR RESIDENT MAGISTRATE, KAJIADO ………….2ND RESPONDENT
CHAIRMAN LAND DISPUTE TRIBUNAL, KAJIADO…....3RD RESPONDENT
ATTORNEY GENERAL…………………………………..……..4TH RESPONDNET
AND
DANIEL MONIREI……………………………………………INTERESTED PARTY
RULING
The application dated 1st November, 2012 was filed by the Petitioner herein seeking reinstatement of the application dated 24th September, 2012. It also seeks reinstatement of conservatory orders that had been issued pending hearing and determination of the application.
The application is premised on grounds that the advocate who was to argue the application on behalf of the applicant delayed to reach court on time because Mombasa road had been blocked following some riot. Consequently, motorists were blocked from passing for one and a half hours. Conservatory orders had been granted stopping the interested party from dealing with the suit property.
The application is supported by an affidavit deponed by Kiplagat Muita the advocate who was in conduct of the case. He stated that while travelling to court he encountered a group of rioters along Mombasa Road at City Cabanas who closed off the road which in turn caused a traffic jam. By the time he got to court the matter had proceeded ex-parte and the application had been dismissed; without interim orders in force they were apprehensive that the interested party would deal with the property to the detriment of the petitioners.
The application is unopposed.
In an application dated 24th September 2012 the applicant herein had sought issuance of conservatory orders against the respondent pending hearing of the application. The prayer sought was granted on the 25/9/12. When the application came up for hearing interpartes on the 1/11/2012, it was dismissed for want of prosecution. On the same day although time is not indicated, Mr. Kiplagat, counsel for the Applicant appeared before the court. It is noted that he notified the court the reason for his late arrival. He proceeded to file the current application on the same day.
The reason given by counsel for the applicant for failure to be in court at the required time has not been challenged. I do uphold the fact that substantive justice would demand priority over technical procedures. (seeArticle 159 (1) (d) of the Constitution).
Accordingly, I do allow the prayer for reinstatement of the application dated 24th September, 2012. Consequently, the conservatory order issued by the court on 25th September, 2012 pending hearing and determination of the application stand reinstated.
Costs of the application shall be in the cause.
DATED, SIGNED and DELIVEREDat MACHAKOS this 27THday of SEPTEMBER 2013.
L.N. MUTENDE
JUDGE