[2018] KEELC 3844 (KLR)
The court found that the application to reinstate the suit had merit because service of the dismissal notice was effected on the wrong firm of advocates, thereby denying the plaintiff a fair opportunity to be heard. However, the court noted the applicant failed to provide evidence of efforts made to trace the file...
Source-derived case information.
- Citation
- [2018] KEELC 3844 (KLR)
- Parties
- Plaintiff: Wilfred Mutembei; Defendant: Andrina Nkuene Njiru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 21 of 2003
- Procedural Posture
- Elc Case / Ruling on Application to Reinstate Suit
- Outcome
- application allowed with no order as to costs; suit reinstated subject to strict compliance with directions
- Legal Topics
- Suit Dismissal, Reinstatement of Suit, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Mutembei
Plaintiff
Andrina Nkuene Njiru
Defendant
Procedural Posture
Elc Case / Ruling on Application to Reinstate Suit
Legal Issues
- 1 Whether the application to reinstate the dismissed suit has merit.
- 2 Whether service was properly effected on the correct advocate.
- 3 Whether the delay in bringing the application is excusable.
Ratio Decidendi
The court found that the application to reinstate the suit had merit because service of the dismissal notice was effected on the wrong firm of advocates, thereby denying the plaintiff a fair opportunity to be heard. However, the court noted the applicant failed to provide evidence of efforts made to trace the file and that the delay in bringing the application was inordinate. Despite these shortcomings, the court exercised its discretion to allow the application, emphasizing the importance of hearing cases on their merits, but imposed strict compliance with pre-trial and service directions to avoid further delay.
Court Disposition
application allowed with no order as to costs; suit reinstated subject to strict compliance with directions
Orders
- The application of 22.1.2018 is allowed with no orders as to costs.
- Matter to be registered as an ELC matter forthwith.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 21 OF 2003
WILFRED MUTEMBEI............................................PLAINTIFF
VERSUS
ANDRINA NKUENE NJIRU.................................DEFENDANT
RULING
1. This suit was dismissed on way back on 22. 11. 2011. The record of the court shows that service was effected upon the firm of Kithinji Rwito instead of L. Kimathi advocates.
2. I therefore find that, the application has merits. Nevertheless, I find no evidence of the efforts made by the applicant to trace the file as argued in paragraph 5 of the affidavit in support of the application. The delay in bringing this application is rather inordinate.
3. I will therefore give directions which shall strictly be followed:
(i) The application of 22. 1.2018 is allowed with no orders as to costs
(ii) Matter to be registered as an ELC matter forthwith.
(iii) Case to be heard on priority basis.
(iv) Pre-trial directions to be taken within 30 days.
(v) Service to be effected.
(vi) In the event that order iv or/and v are not complied with, the suit will stand as dismissed.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 11th APRIL, 2018
IN THE PRESENCE OF:-
Court Assistants:Janet/Galgalo
Kimathi L. for plaintiff - present
D.J Mbaya for defendant - absent
HON. LUCY. N. MBUGUA
ELC JUDGE