[2024] KEELC 924 (KLR)
The court found that the plaintiff's absence was not deliberate and that the application to reinstate the suit was made in a timely manner. The court considered that the subject matter—a contested parcel of land—warranted a hearing on the merits. The interests of justice favored reinstatement, and the court...
Source-derived case information.
- Citation
- [2024] KEELC 924 (KLR)
- Parties
- Plaintiff: Anthony Kimani Wanjiru; Defendant: Abdi Rahman Haji Ahmed
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E182 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed; suit reinstated; costs to defendant
- Judges
- LN Mbugua
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Exercise of Judicial Discretion, Land Dispute, Timeliness of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Kimani Wanjiru
Plaintiff
Abdi Rahman Haji Ahmed
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance.
- 2 Whether the absence of the plaintiff's advocate was deliberate or excusable.
- 3 Whether the interests of justice require a hearing on the merits.
Ratio Decidendi
The court found that the plaintiff's absence was not deliberate and that the application to reinstate the suit was made in a timely manner. The court considered that the subject matter—a contested parcel of land—warranted a hearing on the merits. The interests of justice favored reinstatement, and the court exercised its discretion to set aside the dismissal order, allowing the suit to proceed. However, the court awarded costs of the application to the defendant.
Court Disposition
application allowed; suit reinstated; costs to defendant
Orders
- The plaintiff's application to set aside the dismissal order is allowed.
- The suit is reinstated for hearing on the merits.
Full Case Text
Judgment text and source record
24 paragraphs
Wanjiru v Ahmed (Environment & Land Case E182 of 2021) [2024] KEELC 924 (KLR) (22 February 2024) (Ruling)
Neutral citation: [2024] KEELC 924 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E182 of 2021
LN Mbugua, J
February 22, 2024
Between
Anthony Kimani Wanjiru
Plaintiff
and
Abdi Rahman Haji Ahmed
Defendant
Ruling
1. The Plaintiff’s Notice of Motion dated 29. 9.2023 is for determination. He seeks orders to set aside this Court’s orders of 25. 9.2023 dismissing his claim, and he desires that the suit be reinstated.
2. The application is based on grounds on its face and on the supporting affidavit sworn on 26. 9.2023 by Peris Magoma Nyakundi, counsel in conduct of the case for the Plaintiff. She avers that on 25. 9.2023, this case was coming up for hearing and was listed as number 3 on the cause list. That on the same date, she had another mater in a different court and logged in to this court after 9. 00 am, waited in the lobby and by the time she was admitted, the matter had been called out.
3. That when the Honorable Judge finished calling the cause list, she personally enquired about this suit from the Judge who directed that she follows up with the court’s registry and move the court appropriately. That upon perusal of the file, she discovered that this suit had been dismissed for non-attendance which was purely inadvertent and attributed to delay due to handling another matter.
4. The application is opposed by the Defendant vide his replying affidavit sworn on 16. 1.2024. He avers that he was with his advocates in their offices on 25. 9. 2023 for hearing of this case. That when the matter was called out, there was no response from the Plaintiff’s side and the court decided to place the file aside for a few minutes and called 2 cases before calling out the matter again.
5. He avers that there is no evidence that counsel for the Plaintiff was in another court and there is no indication that the Plaintiff was ready to proceed with the matter on the material date.
6. I have considered all the rival arguments. The issue for determination is whether this matter deserves to be reinstated.
7. The matter was scheduled for hearing on 25. 9 2023, of which the said date had been taken by consent. However, on the said date, there was no attendance by the Plaintiff, but the defence counsel was present. The court proceeded to put the file aside “to see if plaintiffs will turn up”. They did not turn up when the matter was called again at 9. 25. am.
8. I have however taken into consideration that the current application was filed in a timely manner, and the absence of the advocate doesn’t appear to have been deliberate. I have also considered that the suit parcel is contested and it is in the interest of justice that the issues raised are determined after a full hearing. See Esther Wamaitha Njihia & 2 others v Safaricom Limited [2014] eKLR.
9. In the circumstances, the Plaintiff’s application is allowed but with costs to the defendant.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 22NDDAY OF FEBRUARY, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Nyakundi for PlaintiffAwadu for DefendantCourt assistant: Eddel