[2019] KEELC 2499 (KLR)
The court found that the application for reinstatement was filed without inordinate delay after the dismissal of the suit. The reasons advanced for non-attendance were deemed acceptable. Applying the principles from Utalii Transport Company Ltd & 3 Others vs NIC Bank & Another and Ivita v Kyumbu, the court held that...
Source-derived case information.
- Citation
- [2019] KEELC 2499 (KLR)
- Parties
- Plaintiff: Wilson Nyikuri Shiro; Plaintiff: Geoffrey Lianda Lusenaka; Defendant: Philimon Akufa; Defendant: Meshack Shalo J. Makabila
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 470 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Suit
- Outcome
- application allowed with conditions
- Judges
- NA Matheka
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Land Disputes, Delay and Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Nyikuri Shiro
Plaintiff
Geoffrey Lianda Lusenaka
Plaintiff
Philimon Akufa
Defendant
Meshack Shalo J. Makabila
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance.
- 2 Whether the delay in filing the application for reinstatement was inordinate or excusable.
- 3 Whether justice will be served by granting the application for reinstatement.
Ratio Decidendi
The court found that the application for reinstatement was filed without inordinate delay after the dismissal of the suit. The reasons advanced for non-attendance were deemed acceptable. Applying the principles from Utalii Transport Company Ltd & 3 Others vs NIC Bank & Another and Ivita v Kyumbu, the court held that the delay was not prolonged or inexcusable, and that justice would be served by allowing the matter to proceed to hearing. The application for reinstatement was therefore granted, subject to the applicant obtaining a hearing date within 30 days, with costs awarded to the respondents.
Court Disposition
application allowed with conditions
Orders
- The suit is reinstated for hearing and final disposal, on condition that the applicant obtains a hearing date within the next 30 days.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 470 OF 2014
WILSON NYIKURI SHIRO
GEOFFREY LIANDA LUSENAKA.............. PLAINTIFFS/APPLICANT
VERSUS
PHILIMON AKUFA
MESHACK SHALO J. MAKABILA....DEFENDANTS/RESPONDENTS
RULING
The application is dated 15th November 2018 and is brought under sections 3 & 3A and 80 of the Civil Procedure Rules seeking the following orders;
(a) This suit be reinstated for hearing and final disposal.
(b) Costs of this application be provided for.
It is supported by the grounds that the applicant’s advocates did not receive the letter from court dated 27th May, 2018. Suit is over land and the applicant’s case has been dismissed without a chance of being heard.
The 2nd respondent submitted that the applicant has not been keen in prosecuting this matter. The applicant has not produced any evidence that the postal address used in the notice does not belong to him. He never also asked to cross examine the process server.
This court has considered the application and the submissions therein. I have perused the court file and find that this suit was dismissed on 17th October 2018. It is was on the 15th November 2018 that the present application was filed. I find that there is no inordinate delay in filing this application. Reasons advance for non attendance are acceptable.
In the case of Utalii Transport Company Ltd & 3 Others vs NIC Bank & Another (2014) eKLR, the court held that it is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court. The decision on whether the suit should be reinstated for trial is a matter of justice and it depends on the facts of the case. In Ivita v Kyumbu (1984) KLR 441, Chesoni J as he then was, stated that the test is whether the delay is prolonged and inexcusable and if justice will be done despite the delay. Justice is justice for both the plaintiff and the defendant. I find this application has merit and I grant it on condition the applicant obtains a hearing date within the next 30days. Costs of this application to the respondents.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 2ND JULY 2019.
N.A. MATHEKA
JUDGE