[2019] KEELC 3495 (KLR)
The court found that the plaintiff failed to provide a convincing or consistent explanation for his non-attendance on the hearing date. No medical evidence was provided to support the claim of illness, and the assertion that the matter was for mention was contradicted by the court record. The explanations by both...
Source-derived case information.
- Citation
- [2019] KEELC 3495 (KLR)
- Parties
- Plaintiff: Toroitich Misoi Mereng; Defendant: Simeon Kiprotich Katam
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 309 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- A Ombwayo
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Reinstatement of Suit, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Toroitich Misoi Mereng
Plaintiff
Simeon Kiprotich Katam
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the plaintiff has demonstrated sufficient cause to warrant setting aside the dismissal order for want of prosecution.
- 2 Whether the suit should be reinstated and listed for hearing.
Ratio Decidendi
The court found that the plaintiff failed to provide a convincing or consistent explanation for his non-attendance on the hearing date. No medical evidence was provided to support the claim of illness, and the assertion that the matter was for mention was contradicted by the court record. The explanations by both the plaintiff and his counsel were deemed unsatisfactory and contradictory. The court held that the applicant had not demonstrated sufficient cause to warrant the exercise of judicial discretion to set aside the dismissal order. Consequently, the application to reinstate the suit was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 6.12.2017 is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
E & L CASE NO. 309 OF 2014
TOROITICH MISOI MERENG.............................PLAINTIFF
VERSUS
SIMEON KIPROTICH KATAM.........................DEFENDANT
RULING
1. The plaintiff seeks orders through the application dated 6. 12. 2017 that the court order given on 4. 12. 2017 dismissing the suit herein for want of prosecution be set aside and subsequently the suit be reinstated and listed down for hearing.
2. The application is based on grounds that the plaintiff/applicant was unwell at home on 4. 12. 2017 and thought the suit was in court for mention and not for hearing.
3. The plaintiff’s/applicant’s counsel on record attended court on 4. 12. 2017 and found that this suit had been dismissed for want of prosecution after there was no appearance by both parties in this suit.
4. The plaintiff’s/applicant’s efforts to seek audience of the court and the defence counsel led to this formal application for the interests of justice and all the parties in the suit. The suit was part-heard at the stage of the defence case and can proceed to hearing after this court sets aside the order given on 4. 12. 2017 and reinstate the suit. In the supporting affidavit, the plaintiff states that he thought that the matter was coming for mention. Moreover, that he was unwell.
5. The defendant on his part states that if the defendant was unwell, he could not have been immediately available to see his advocate. The plaintiff was aware of the hearing date but did not attend. This court dismissed the plaintiffs suit on 4th December 2017 for the non-attendance by the plaintiff.
6. Under Order 12 of Civil Procedure Rules consequences of non- attendance by a party to a suit are stated. Rule 13 is specific that when only the defendant attends and admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court. In the case Shah -vs- Mbogo & Another (1967) EA 1116,the court stated on the matter of its discretion, that;
“The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.”
7. It is trite law that the court’s discretion to set aside its ruling is not restricted but should be so exercised not to cause injustice to the opposite party. It is incumbent upon the party seeking the court's favour to adduce sufficient and plausible reasons that are demonstrable and persuasive to the court.
8. A court's discretion must be exercised judiciously based on facts and the law. The party seeking to reinstate the suit must also demonstrate good faith the case, what unavoidable circumstances meant. Had the matter been brought up then, may be, the result would have been different, once again, in the court's discretion.
9. I have considered the application and the response and do find the explanation given by the plaintiff for not attending court is not convincing. No medical reports have been annexed to the affidavit as evidence that he was unwell. It appears that the plaintiff “knew’ that it was a mention and therefore did not attend because it was a mention. However, the court record shows that it was a hearing. Mr. Cheptarus, learned counsel for the plaintiff does not explain why he did not to attend court.
10. I do find that the explanation given by the plaintiff and his counsel not satisfactory and the same is contradictory as I do not know whether to believe the plaintiff that he was unwell or that he knew that it was a mention. The application has no merit. It is dismissed with costs.
Dated and delivered at Eldoret this 8th day of April, 2019.
A. OMBWAYO
JUDGE