[2017] KEELC 3732 (KLR)
The court found that there was no evidence that the parties were served with the notice to show cause before the suit was dismissed for want of prosecution. The applicant demonstrated that her counsel had made efforts to locate the missing court file and that the delay was not deliberate. In the absence of proper...
Source-derived case information.
- Citation
- [2017] KEELC 3732 (KLR)
- Parties
- Applicant: Teresia Aturwa Atonyi; Respondent: Fanuel Mugwang’a Lihanda
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 70 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application allowed. Order of dismissal set aside. Suit reinstated.
- Judges
- NA Matheka
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Service of Notice, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Aturwa Atonyi
Applicant
Fanuel Mugwang’a Lihanda
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the parties were properly served with notice to show cause before dismissal.
- 3 Whether the delay in prosecuting the matter was deliberate or excusable.
Ratio Decidendi
The court found that there was no evidence that the parties were served with the notice to show cause before the suit was dismissed for want of prosecution. The applicant demonstrated that her counsel had made efforts to locate the missing court file and that the delay was not deliberate. In the absence of proper service and given the circumstances, the court exercised its discretion to set aside the dismissal order and reinstate the suit, holding that the application had merit.
Court Disposition
Application allowed. Order of dismissal set aside. Suit reinstated.
Orders
- The order made on 8th July 2015 dismissing the suit for want of prosecution is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT OF KENYA AT KAKAMEGA
CASE NO. 70 OF 2016
TERESIA ATURWA ATONYI….……………..…PLAINTIFF / APPLICANT
- VERSUS -
FANUEL MUGWANG’A LIHANDA………...DEFENDANT/ RESPONDENT
RULING
This Notice of Motion is brought under Section 98 of the Civil Procedure Act and under order 52 Rule 1 of the Civil Procedure Rules seeking the following orders;
1. That the Honourable Court be pleased to set aside its order made on the 8th July 2015 dismissing this suit for want of prosecution.
2. That any other orders be made as the Court may deem just in the circumstances.
The Applicant submitted that she was not aware that this matter was coming up for hearing on the 8th July 2015 for dismissal for want of prosecution. Counsel for the Applicant has for a long time been looking for the court file which went missing in the registry. When the Counsel wanted to file an application to reconstruct the court file is when they discovered that it the suit had been dismissed for want of prosecution. The delay on prosecuting the matter was not deliberate. The Respondent was served but failed to attend court and the matter proceeded unopposed.
This court has perused the court file and sees no evidence that indeed the parties were ever served with the notice to show cause on the dismissal of this matter. Both parties were absent on the material day and the matter was dismissed. The Applicant in her supporting affidavit has annexed letters to show that the Counsel on record had written to the Deputy Registrar looking for the file as it had gone missing. I find this application has merit and I grant it as prayed. Costs to be in the cause.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 9TH MARCH 2017.
N.A. MATHEKA
JUDGE