[2016] KEELC 637 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for his or his advocate's absence on the hearing date. The mere assertion that the lawyer did not inform him of the date, without an affidavit from the lawyer, was insufficient. The court emphasized that it is the responsibility of a...
Source-derived case information.
- Citation
- [2016] KEELC 637 (KLR)
- Parties
- Plaintiff: Timotheo Kutete Chetambe; Defendant: Wycliffe Wakoli Simiyu; Defendant: Julius Amuka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 41 of 2014
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Dismissal of Injunction Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- EO Obaga
- Legal Topics
- Injunctions, Setting Aside Orders, Non Attendance, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timotheo Kutete Chetambe
Plaintiff
Wycliffe Wakoli Simiyu
Defendant
Julius Amuka
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Dismissal of Injunction Application
Legal Issues
- 1 Whether the applicant has provided sufficient reason for non-attendance leading to dismissal of his injunction application.
- 2 Whether the dismissal order should be set aside to allow hearing of the injunction application.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for his or his advocate's absence on the hearing date. The mere assertion that the lawyer did not inform him of the date, without an affidavit from the lawyer, was insufficient. The court emphasized that it is the responsibility of a litigant to be diligent and follow up on their case. As such, the application to set aside the dismissal was found to lack merit and was dismissed with costs to the respondent. The court further noted that the substantive dispute over ownership should be resolved at a full hearing rather than through interlocutory injunctions.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to set aside the dismissal of the injunction application is dismissed with costs to the respondent.
- The parties should proceed to fix the suit for full hearing to resolve the ownership dispute.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 141 OF 2014
TIMOTHEO KUTETE CHETAMBE…………..…………………PLAINTIFF/RESPONDENT
VERSUS
WYCLIFFE WAKOLI SIMIYU…............................................1STDEFENDANT/APPLICANT
JULIUS AMUKA…………………….....................................……………...2ND DEFENDANT
R U L I N G
1. The Applicant in this application is the first defendant in this suit. The applicant filed an application for injunction against the Plaintiff/Respondent. He moved to Eldoret ELC Court where he obtained a temporary injunction restraining the Plaintiff/Respondent from interfering with an unsurveyed plot known as Plot No. C Block 5 within Kitale Municipality. The temporary orders of injunction were given on 24/11/2015.
2. The application by the applicant was not heard on a number of occasions due to the issue of representation. The applicant had changed lawyers on more than three occasions. On 24/3/2016 the application by the applicant was fixed for hearing on 19/4/2016. When the application was called out neither the applicant nor his advocate were in court. The application was dismissed for non attendance.
3. The applicant filed an application on 23/5/2016 seeking to have the orders dismissing his application set aside. The applicant who is now acting in person contends that he was not informed about the hearing date by his lawyer.
4. The application is opposed by the respondent on the ground that there is no good reason which has been given by the applicant as to why he did not attend court. That the application belonged to the applicant and that it was upon the applicant to follow it up and not simply leave it to his lawyer. That the applicant’s lawyer has not sworn an affidavit to explain why he did not attend court.
5. I have carefully gone through the applicant’s application as well as the opposition thereto by the respondent. The applicant in the present case is the one who has been sued. The respondent had applied for an injunction which injunction was dismissed as it was not possible to determine who was the true owner of the suit land as both the applicant and respondent has allotment letters.
6. What the applicant was seeking in the dismissed application was a counter-injunction. The applicant has not stated the reason why he or his advocate did not attend court. This is clearly a matter which can be resolved through full hearing. Injunctions and counter-injunctions cannot help. As the applicant has not given a good reason why he or his lawyer were not in court on 19/4/2016, I find that his application lacks merit. The same is hereby dismissed with costs to the respondent. The parties should proceed to fix the suit for full hearing so that the ownership dispute can be solved once and for all.
It is so ordered.
Dated, signed and delivered at Kitale on this 25th day of July, 2016.
E. OBAGA
JUDGE
In the presence of Applicant.
Court Assistant - Isabellah.
E. OBAGA
JUDGE
25/7/2016