[2017] KEHC 3911 (KLR)
The court found that there was no evidence the plaintiff was served with the notice to show cause prior to the dismissal of her suit. The record lacked any affidavit of service or proof of dispatch of the relevant notices and orders. The court held that dismissing the suit without proper service was unjust,...
Source-derived case information.
- Citation
- [2017] KEHC 3911 (KLR)
- Parties
- Plaintiff: Susy Ciamwari Eustace; Defendant: Kithinji Njoka; Defendant: Murith Njoka; Defendant: Mutembei Njoka
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 7 of 2017
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit reinstated.
- Judges
- FM Njoroge
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Service of Process, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susy Ciamwari Eustace
Plaintiff
Kithinji Njoka
Defendant
Murith Njoka
Defendant
Mutembei Njoka
Defendant
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal order dated 28th February, 2017 should be set aside and the suit reinstated.
- 2 Whether the plaintiff was properly served with the notice to show cause prior to dismissal.
- 3 Whether the interests of justice require the suit to be heard on its merits.
Ratio Decidendi
The court found that there was no evidence the plaintiff was served with the notice to show cause prior to the dismissal of her suit. The record lacked any affidavit of service or proof of dispatch of the relevant notices and orders. The court held that dismissing the suit without proper service was unjust, particularly as the matter involved land, which is of significant importance to the plaintiff. The court exercised its discretion to set aside the dismissal order and reinstate the suit, emphasizing the need for matters to be determined on their merits rather than on procedural technicalities. The plaintiff was directed to comply with pre-trial procedures, and the defendants were to be...
Court Disposition
Application allowed; suit reinstated.
Orders
- The dismissal order dated 28th February, 2017 is set aside.
- The suit is reinstated for hearing on the merits.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
CHUKA ELC CASE NO. 07 OF 2017
FORMERLY MERU ELC CASE NO. 35 OF 2015
SUSY CIAMWARI EUSTACE……….………..............……………….PLAINTIFF
VERSUS
KITHINJI NJOKA…………………………..………………….1ST DEFENDANT
MURITH NJOKA……………………….……………………..2ND DEFENDANT
MUTEMBEI NJOKA……….…………………………………3RD DEFENDANT
RULING
1. This application is dated 24. 7.2017 and seeks orders:
1. THAT the Honourable Court be pleased to certify this application urgently owing to its urgent nature and hear the same without delay.
2. THAT the Honourable Court be pleased to set aside its order dated 28th February, 2017 and reinstate the plaintiffs Originating Summons and hear the said originating Summons on merit.
3. THAT the costs of this application be in the cause.
2. The application is supported by the affidavit of the applicant sworn on 24. 7.2017 and has the following grounds:
1. The plaintiff filed the Originating Summons in this case on 5th day of June, 2015 and she duly served the defendants.
2. The defendants did not file their defence and after making several attempts to have the matter prosecuted, the plaintiff was informed from the MeruHigh Court Registry that the Court file could not be traced.
3. On 24th day of June 2017, the plaintiff again went to the High Court Registry at Meru to fix the case for hearing but she was informed that the court file had been transferred to the Environment and Land Court at Chuka.
4. When the plaintiff went to Chuka Law Court on 27th day of June 2017, she indeed found that her case Meru ELC No.35 of 2015 (OS) had indeed been transferred to ELC Court at Chuka and allocated Chuka ELC Case NO. 7 of 2017.
5. Upon perusal of the said court file at Chuka, the plaintiff/applicant noted that from the court file that vide the letter dated 27th day of January 2017 addressed to the plaintiff, an order signed by the judge on 23rd January 2017 and undated letter by the Deputy Registrar Meru High Court was addressed to the plaintiff indicating that the court file had been transferred to Chuka ELC Court.
6. The plaintiff has never received the said letters and the court order and in fact, there is nothing in the court file to show how they were dispatched and / or served to the plaintiff or the method used.
There is no affidavit of service to show the mode of service to the plaintiff.
7. The court record further shows that there is a carbon copy of a letter addressed to the plaintiff to show cause why the plaintiff’s suit should not be dismissed dated 8th day of February, 2017 signed by the Deputy Registrar Meru High Court.
8. There is nothing to show how the said Notice to show cause was dispatched to the plaintiff and there is no affidavit of service to show that the plaintiff was served with the said Notice to show cause.
9. Equally the plaintiff has never received the said Notice to Show Cause dated 8th day of February, 2017.
10. This suit was dismissed on 28th day of February, 2017 without the plaintiff’s knowledge because she was never informed that the suit had been transferred from Meru E & L Court to Chuka E & L Court.
11. The plaintiff was also never served with Notice to show cause why her case should not be dismissed and she has never received any letter and / or any document from the court relating to transfer and subsequent dismissal of her case.
12. The suit herein relates to land and it is only just and fair that the same be reinstated and be heard on merit.
13. If the suit herein Is not reinstated the plaintiff shall suffer irreparable loss and she will lose her land.
14. The plaintiff will fast track her case diligently once it is reinstated to ensure that the same is heard without delay.
15. The plaintiff / applicant is a widow who is ailing and her only source of livelihood is one (1) of land parcel No.MAGUMONI/THUITA/494 where she also lives with her family.
16. No prejudice will be occasioned to the defendants if this suit is reinstated as they have expressed their willingness to give me the one (1) acre of the land and they have also not filed any Memorandum of Appearance or defence.
17. The plaintiff also intends to consolidate this case with Chuka ELC Case No. 15 of 2017 once this case is reinstated.
3. In his submissions Mr. Nyamu Nyaga, for the applicant was categorical that the plaintiff did not receive Notice to Show Cause and was not aware that the file for this suit had been transferred to Chuka from Meru. He laid reliance on the grounds on the face of the application and the apposite supporting affidavit.
4. I have considered the submissions and the pleadings proffered herein. I am persuaded to vacate the dismissal order, I issued on 28. 2.2017.
5. Consequently, this suit is reinstated.
6. The plaintiff is ordered to fully comply with order 11,CPR within 30 days of today and the defendants should do so within 30 days after receipt of the plaintiff’s compliance documents.
7. The plaintiff’s advocate should serve the defendants with the orders issued by the court today vide this ruling, and also in the court’s file, within 14 days of today.
8. Costs shall be in the cause.
9. It is so ordered
Delivered in open court at Chuka this 26th day of June, 2017 in the presence of:
CA: Ndegwa
Nyamu Nyaga for the plaintiff
P.M. NJOROGE
JUDGE