[2014] KEELC 426 (KLR)
The court found that the Plaintiffs' advocate's failure to attend court on 20th November 2013 was not deliberate but due to illness, as evidenced by the supporting affidavit. Since the Respondents did not oppose the application, and the explanation for non-attendance was reasonable, the court exercised its...
Source-derived case information.
- Citation
- [2014] KEELC 426 (KLR)
- Parties
- Plaintiff: Thomas Gona Rimba; Plaintiff: Kanze Kaingu Nduria; Defendant: Mario Rossi; Defendant: William Kombe Kipawa; Defendant: Albert Mrabu; Defendant: Shida Simani; Defendant: Edward Samini; Defendant: David Zobe; Defendant: Charo Kone; Defendant: Agnes Gunga Bichondo; Defendant: Chimega
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 84 of 2013
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Setting Aside Orders, Non Attendance, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Gona Rimba
Plaintiff
Kanze Kaingu Nduria
Plaintiff
Mario Rossi
Defendant
William Kombe Kipawa
Defendant
Albert Mrabu
Defendant
Shida Simani
Defendant
Edward Samini
Defendant
David Zobe
Defendant
Charo Kone
Defendant
Agnes Gunga Bichondo
Defendant
Chimega
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court should set aside its order dismissing the application dated 18th September 2013 for non-attendance and want of prosecution.
- 2 Whether the failure to attend court was deliberate or excusable.
Ratio Decidendi
The court found that the Plaintiffs' advocate's failure to attend court on 20th November 2013 was not deliberate but due to illness, as evidenced by the supporting affidavit. Since the Respondents did not oppose the application, and the explanation for non-attendance was reasonable, the court exercised its discretion to set aside the dismissal order. The court emphasized that justice is best served by allowing parties to be heard on the merits of their applications rather than being shut out due to excusable absence. Consequently, the court set aside its previous order dismissing the application for non-attendance and directed that each party bear its own costs.
Court Disposition
application allowed
Orders
- The court hereby sets aside its orders issued on 20th November 2013 dismissing the application dated 18th September 2013 for non-attendance and want of prosecution.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT OF KENYA
AT MALINDI
LAND CASE NO. 84 OF 2013
1. THOMAS GONA RIMBA
2. KANZE KAINGU NDURIA...............................................................PLAINTIFFS
=VERSUS=
1. MARIO ROSSI
2. WILLIAM KOMBE KIPAWA
3. ALBERT MRABU
4. SHIDA SIMANI
5. EDWARD SAMINI
6. DAVID ZOBE
7. CHARO KONE
8. AGNES GUNGA BICHONDO
9. CHIMEGA.........................................................................................DEFENDANTS
R U L I N G
Introduction
The Application before me is dated 25th November 2013 seeking for the following reliefs:
(a) That the Honourable court be pleased to set review and/or vary or set aside the Orders issued on 20th November 2013 dismissing the Application dated 18th September 2013.
(b) That the court be pleased to direct that these two Applications be heard concurrently on the same day.
(c) THAT the cost of this Application be in cause.
The Application is supported by the Affidavit of the Plaintiff's Advocate who has deponed that the failure to attend court to prosecute the Application of 18th September 2013 was as a result of the advocate who was unwell and could not attend court.
The Respondents did not file any response to the Application. In the circumstance, the Plaintiff's Application is unopposed.
I am satisfied, on the basis of the Plaintiffs' advocate’s affidavit that the failure by the Plaintiff's advocate to attend court on 20th November 2013 was not deliberate.
I therefore allow the Application dated 25th November 2013 in the following terms:
(a) That the court hereby set aside its orders issued on 20th November 2013 dismissing the Application dated the 18th September 2013 for non-attendance and want of prosecution.
(b) Each party to bear its own costs.
Dated and delivered in Malindi this 4th Day of April 2014
O. A. Angote
Judge