[2023] KEELC 21164 (KLR)
The court found that the trial magistrate's order dismissing the appellant's suit was premised on the mistaken belief that there was an extant order requiring prosecution within 45 days, when in fact, after reinstatement, no such order existed. The exercise of discretion to dismiss the suit was therefore not based...
Source-derived case information.
- Citation
- [2023] KEELC 21164 (KLR)
- Parties
- Appellant: Christopher Kimaiyo Yego; Respondent: Jacob Kibet Kibiwott; Respondent: Mark Kipkosgei Kipron
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Iten
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 11 of 2022
- Procedural Posture
- Environment and Land Appeal / Judgment
- Outcome
- Appeal allowed. Order dismissing suit set aside. Suit reinstated for hearing before a different magistrate. Each party to bear their own costs.
- Judges
- L Waithaka
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Judicial Discretion, Appeals Against Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Kimaiyo Yego
Appellant
Jacob Kibet Kibiwott
Respondent
Mark Kipkosgei Kipron
Respondent
Procedural Posture
Environment and Land Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in dismissing the appellant's suit for failure to comply with a non-existent order to prosecute within 45 days.
- 2 Whether the order dismissing the suit was based on a factual or legal error.
- 3 Whether the suit should be reinstated and heard afresh.
Ratio Decidendi
The court found that the trial magistrate's order dismissing the appellant's suit was premised on the mistaken belief that there was an extant order requiring prosecution within 45 days, when in fact, after reinstatement, no such order existed. The exercise of discretion to dismiss the suit was therefore not based on valid or accurate grounds. The appellate court held that the error was attributable to the trial magistrate and that the appellant had established sufficient cause for the order of dismissal to be set aside. The suit was accordingly reinstated and directed to be heard by a different magistrate.
Court Disposition
Appeal allowed. Order dismissing suit set aside. Suit reinstated for hearing before a different magistrate. Each party to bear their own costs.
Orders
- The order made on 23rd March 2021 dismissing the appellant's suit with costs is set aside.
- The appellant's suit is reinstated for hearing.
Full Case Text
Judgment text and source record
29 paragraphs
Yego v Kibiwott & another (Environment and Land Appeal 11 of 2022) [2023] KEELC 21164 (KLR) (30 October 2023) (Judgment)
Neutral citation: [2023] KEELC 21164 (KLR)
Republic of Kenya
In the Environment and Land Court at Iten
Environment and Land Appeal 11 of 2022
L Waithaka, J
October 30, 2023
Between
Christopher Kimaiyo Yego
Appellant
and
Jacob Kibet Kibiwott
1st Respondent
Mark Kipkosgei Kipron
2nd Respondent
Judgment
1. On 23rd March 2021, Hon. Kutwa SPM dismissed the appellant’s suit to wit Iten SPMC (MCE & L) No. 17 of 2018 on the ground that the plaintiff/appellant had failed to adhere to comply with an order issued by the court requiring him to prosecute the suit within 45 days.
2. Aggrieved by the order of the Learned Trial Magistrate, the plaintiff appealed to this court on seven grounds that can be reduced to one broad ground namely that the Learned Trial Magistrate erred by dismissing his suit when the circumstances of the case did not warrant such action.
3. Pursuant to directions given on 19th June, 2023 that the appeal be disposed off by way of written submissions, parties filed submissions which submissions, I have read and considered.
4. A review of the court record shows that no order was made by the Learned Trial Magistrate on 26th February, 2020 requiring the plaintiff to prosecute the suit within 45 days. The record shows that on that day, the Learned Trial Magistrate dismissed the plaintiff’s suit for want of prosecution. In so doing, the Learned Trial Magistrate observed that the plaintiff had earlier on been given 45 days to prosecute his case, which order he failed to comply with.
5. The court record further shows that the plaintiff made an application for setting aside of the order and reinstatement of the suit. The application was allowed on 28th May, 2020. The order for reinstatement of the suit did not have timelines within which the suit ought to have been prosecuted.
6. From the foregoing facts, it is clear that the order of 23rd March 2021 was not supported by the facts of the case.
7. Whereas the Learned Trial Magistrate had discretionary power to make the order he made, that power has to be exercised judiciously. Judicious exercise of that power is demonstrated by inter alia giving valid reason or reasons for actions or decision made.
8. In the circumstances of this case, where the order of the court was premised on the wrong impression that there existed an order requiring the plaintiff to prosecute the case within 45 days, I find the reason given by the Learned Trial Magistrate to be erroneous hence incapable of forming the basis of the order appealed from.
9. The upshot of the foregoing is that the plaintiff/appellant has made up a case for setting aside the order made on 23rd May 2023 dismissing the plaintiff’s suit with costs. Consequently, I set aside the order made on 23rd May 2023 dismissing the plaintiff’s/appellant’s suit with costs and I reinstate the suit.
10. The suit shall be heard by a different Magistrate other than Hon. Kutwa.
11. Since the error giving rise to the appeal is attributable to the Learned Trial Magistrate, I order that each party shall bear their costs of the suit.
12. Orders accordingly.
DATED, SIGNED AND DELIVERED, AT ITEN THIS 30TH DAY OF OCTOBER, 2023. L. N. WAITHAKAJUDGEJudgment read virtually in the presence of:-No appearance for the appellantMs Cherop holding brief for Mr. Kiplagat for the respondentChristine – Court Assistant