[2021] KEELC 4577 (KLR)
The court found that the plaintiff failed to comply with its order to file an affidavit of service to demonstrate that the defendant had been served with the application. Without proof of service, the court could not be satisfied that the defendant was aware of the application or given an opportunity to respond....
Source-derived case information.
- Citation
- [2021] KEELC 4577 (KLR)
- Parties
- Plaintiff: Wijeje Rombosia; Defendant: Fredrick Kisambo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2008
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application struck out for non-service
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wijeje Rombosia
Plaintiff
Fredrick Kisambo
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff complied with the court's order to file evidence of service of the application on the defendant.
- 2 Whether the application to set aside the dismissal for want of prosecution can be entertained without proof of service.
Ratio Decidendi
The court found that the plaintiff failed to comply with its order to file an affidavit of service to demonstrate that the defendant had been served with the application. Without proof of service, the court could not be satisfied that the defendant was aware of the application or given an opportunity to respond. Compliance with procedural requirements, especially service of process, is fundamental to the administration of justice. The failure to serve the defendant rendered the application fatally defective, and as such, the court struck out the application for non-service.
Court Disposition
application struck out for non-service
Orders
- The application dated 19/11/2020 is struck out for non-service.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 12 OF 2008
WIJEJE ROMBOSIA........................................................................PLAINTIFF
VERSUS
FREDRICK KISAMBO.................................................................DEFENDANT
RULING
1. The Notice of Motion application dated 19/11/2020and filed in court on 30/11/2020, has been bought under Section 3A,and63(e)of theCivil Procedure Act. The plaintiff seeks the following orders:-
(1) …spent.
(2) That this honourable court be pleased to set aside and or review the orders dismissing this suit for want of prosecution.
(3) That this suit be reinstated for hearing and determination inter partes on merit.
(4) That costs of this application be provided for.
2. The application is supported by the affidavit of the plaintiff sworn on 19/11/2020. The plaintiff also filed his written submissions dated 22/12/2020 in the record. they are not stamped with the date of filing
3. In giving directions in respect of the instant application this court ordered that you be filed an affidavit of service to enable the court be aware that the plaintiff has served the defendant and that he is not trying some unprocedural antics against him. There is none that was filed by the plaintiff. This court can not therefore be in a position to know whether the defend ant was served with the application. This is quite an old matter which was dismissed for want of prosecution in the year 2016 which dismissal led to the instant application.
4. As the plaintiff has failed to comply with the lawful order of the court requiring him to file evidence of service on the defendant, I hereby strike out the application dated 19/11/2020 for non-service. There shall be no orders as to costs.
It is so ordered.
Dated, signed and delivered at Kitale via electronic mail on this 26th day of January, 2021.
MWANGI NJOROGE
JUDGE, ELC, KITALE.