[2019] KEELC 2191 (KLR)
The court found that while there was inordinate delay in filing the application for reinstatement, the reasons advanced by the applicant for non-attendance were adequate. The court exercised its discretion to allow the reinstatement of the dismissed application, but ordered the plaintiff to pay costs to the...
Source-derived case information.
- Citation
- [2019] KEELC 2191 (KLR)
- Parties
- Plaintiff: Veronica Wangare; Defendant: David Wambugu Njaaga; Defendant: Joseph Korir
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 209 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Dismissed Application
- Outcome
- application for reinstatement allowed with conditions
- Legal Topics
- Reinstatement of Application, Dismissal for Non Attendance, Judicial Discretion, Costs Award
- 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
Veronica Wangare
Plaintiff
David Wambugu Njaaga
Defendant
Joseph Korir
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement of Dismissed Application
Legal Issues
- 1 Whether the application for reinstatement of the dismissed application should be allowed.
- 2 Whether the delay in filing the application for reinstatement was inordinate and if it should affect the exercise of the court's discretion.
- 3 Whether costs should be awarded to the defendants due to the delay.
Ratio Decidendi
The court found that while there was inordinate delay in filing the application for reinstatement, the reasons advanced by the applicant for non-attendance were adequate. The court exercised its discretion to allow the reinstatement of the dismissed application, but ordered the plaintiff to pay costs to the defendants as a consequence of the delay. The court emphasized that the plaintiff must fix the application for hearing without further delay and comply with the costs order before the next hearing date.
Court Disposition
application for reinstatement allowed with conditions
Orders
- The application for reinstatement is allowed.
- The plaintiff shall fix the reinstated application for hearing without delay.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
ELC NO.209 OF 2015
VERONICA WANGARE................................................................................PLAINTIFF
VERSUS
DAVID WAMBUGU NJAAGA...........................................................1ST DEFENDANT
JOSEPH KORIR.................................................................................2ND DEFENDANT
RULING
This ruling is in respect of an application dated 24th April 2019 by the plaintiff applicant seeking for the reinstatement of an application dated 24th October 2018 which was dismissed for non-attendance by Counsel for the plaintiff.
Counsel for the plaintiff relied on the grounds on the face of the record and the supporting affidavit filed in court. Counsel for the applicant submitted that he was in Court No. 1 and he entered the court when the application had just been dismissed. Counsel went ahead to argue the merits of the dismissed application and urged the court to allow the reinstatement.
Both Counsel for the defendants opposed the application as having not been filed in a timely fashion as there was inordinate delay. Reinstatement of a dismissed application by the court is discretionary and if the court is satisfied that the reasons given are adequate then it can exercise such discretion in favour of the applicant.
I find that the reasons advanced adequate to warrant the court to allow the reinstatement of the application for hearing. I notice that the submissions by Counsel of the applicant were as if he was arguing the dismissed application before it has been reinstated. However, I find that there was inordinate delay in filing the application and therefore the applicant must pay costs for the application.
I therefore allow the application for reinstatement and that the plaintiff should fix the same for hearing without delay. Plaintiff to pay Kshs. 10, 000/ to the defendants before the next hearing date.
Dated and delivered at Eldoret on this 18th day of July, 2019.
M.A. ODENY
JUDGE
RULING READ IN OPEN COURT in the presence of Mr.Ngetich holding brief for Mr.Omusundi for 1st defendant. Mr.Kigen holding brief for Mr.Miyienda for Plaintiff and in the absence of Mr.Yego for 2nd defendant.
Mr.Mwelem – Court Assistant