[2019] KEELC 2942 (KLR)
The court found that the plaintiff failed to provide a plausible or sufficient explanation for his absence on 8th November, 2018. The plaintiff did not produce evidence that he was unable to attend court due to work commitments, nor did his affidavit state that his employer denied him permission. Instead, the...
Source-derived case information.
- Citation
- [2019] KEELC 2942 (KLR)
- Parties
- Applicant: Tony Njoroge Munene (Suing as the Attorney of the Administrator/Executors of the Estate of James Flavian Chege Munene (deceased)); Respondent: Esmail Haji Ebrahim; Respondent: National Land Commission; Respondent: Hon. Attorney General; Respondent: Emra Limited; Respondent: Catherine Muthoni Karug; Respondent: James Kungu Kariuki; Respondent: Mukamart Enterprises Ltd; Respondent: Deekei Venture Ltd; Respondent: Gambado Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 512 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Suit
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Non Attendance, Reinstatement of Suit, Exercise of Discretion, Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tony Njoroge Munene (Suing as the Attorney of the Administrator/Executors of the Estate of James Flavian Chege Munene (deceased))
Applicant
Esmail Haji Ebrahim
Respondent
National Land Commission
Respondent
Hon. Attorney General
Respondent
Emra Limited
Respondent
Catherine Muthoni Karug
Respondent
James Kungu Kariuki
Respondent
Mukamart Enterprises Ltd
Respondent
Deekei Venture Ltd
Respondent
Gambado Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution and non-attendance.
- 2 Whether the plaintiff provided a sufficient explanation for failure to attend court on the scheduled date.
- 3 Whether the court should exercise its discretion to set aside the dismissal order.
Ratio Decidendi
The court found that the plaintiff failed to provide a plausible or sufficient explanation for his absence on 8th November, 2018. The plaintiff did not produce evidence that he was unable to attend court due to work commitments, nor did his affidavit state that his employer denied him permission. Instead, the explanation given was that counsel advised him not to attend because the 1st defendant had died, which the court found unpersuasive. In the absence of credible evidence or a satisfactory reason for non-attendance, the court declined to exercise its discretion to reinstate the suit. The application to reinstate the suit was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application dated 23rd November, 2018 is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT THIKA
ELC. CASE NO. 512 OF 2017
TONY NJOROGE MUNENE (Suing as the Attorneyof the
Administrator/Executorsof the EstateofJAMES FLAVIAN
CHEGEMUNENE (deceased)..........................................PLAINTIFF/APPLICANT
VERSUS
ESMAIL HAJI EBRAHIM................................1ST DEFENDANT/RESPONDENT
NATIONAL LAND COMMISSION.................2ND DEFENDANT/RESPONDENT
HON. ATTORNEY GENERAL.........................3RD DEFENDANT/RESPONDENT
EMRA LIMITED................................................4TH DEFENDANT/RESPONDENT
CATHERINE MUTHONI KARUG..................5TH DEFENDANT/RESPONDENT
JAMES KUNGU KARIUKI.............................6TH DEFENDANT/RESPONDENT
MUKAMART ENTERPRISES LTD...............7TH DEFENDANT/RESPONDENT
DEEKEI VENTURE LTD...................................TH DEFENDANT/RESPONDENT
GAMBADO LTD................................................9TH DEFENDANT/RESPONDENT
RULING
1. In his Application dated 23rd November, 2018, the Plaintiff is seeking for an order reinstating the suit. The Application is premised on the ground that both the Plaintiff and the Defendants were not in court on 8th November, 2018 when the matter was called out; that the failure by the Plaintiff not to attend court on 8th November, 2018 was not intentional and that in the interest of justice, the suit should be reinstated.
2. According to the Plaintiff’s deposition, his advocate informed him that the 1st Defendant was deceased; that his advocate informed him that it was essential that the 1st Defendant be substituted before the matter could proceed for hearing and that the failure to attend court on 8th November, 2018 was not intentional.
3. The 5th to 9th Defendants filed Grounds of Opposition in which they averred that the order which is sought to be impugned was made in the presence of both parties; that the Application is an invitation for the court to sit on its own Appeal and that the Application has no merit.
4. In his submissions, the Plaintiff’s advocate submitted that the failure by the Plaintiff to attend court was an excusable mistake on the part of the Plaintiff’s counsel which should not be visited on the Plaintiff and that the Application was filed within a reasonable time. Counsel relied on numerous authorities which I have considered.
5. The Defendants’ counsel submitted that the Plaintiff did not attend court on the scheduled date; that the Application to have the matter adjourned was disallowed and that the Plaintiff’s remedy is to either file an Appeal or an Application for review of the order.
6. This matter came up for hearing on 8th November, 2018 during the “service week”. On the said date, the Plaintiff was represented by an advocate who applied for an adjournment because “his client could not be granted leave to attend court”. On the same day, the Defendants’ advocate was also not ready to proceed with the matter. The court, after giving its reasons, declined to adjourn the matter. In the absence of the Plaintiff in court, the court proceeded to dismiss the matter for want of prosecution and attendance with no order as to costs.
7. Order 12 Rule 7 of the Civil Procedure Rules provides that where Judgment has been entered or the suit has been dismissed, the court, on Application, may set aside or vary the Judgment or order upon such terms as may be just.
8. Although the Plaintiff’s advocate informed the court that the Plaintiff was unable to attend court on 8th November, 2018 because he was unable to get permission from his place of work, no evidence has been adduced to show that the Plaintiff is indeed working and that he was unable to get permission from his place of work to attend court. In fact, the Plaintiff has not alluded in his Affidavit that he was unable to attend court because his employer declined to give him permission. Instead, the Plaintiff’s position is that it is his advocate who advised him not to attend court because the 1st Defendant had passed on.
9. Having failed to produce any evidence to show that he was on duty on 8th November, 2018, I find that the Plaintiff has not given a plausible explanation as to why he was not in court on 8th November, 2018. This court is therefore unable to exercise its discretion in his favour.
10. For those reasons, the Application dated 23rd November, 2018 is dismissed with no order as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 14TH DAY OF JUNE, 2019.
O.A. ANGOTE
JUDGE