Case ID:177725

Matui Naibei v Gladys Masai [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 164 of 2017

Parties:

Matui Naibei v Gladys Masai

Date Delivered:

28 Jun 2021

Case Class:

Civil

Court:

Environment and Land Court at Kitale

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Matui Naibei v Gladys Masai [2021] eKLR

Court Division:

Environment and Land

County:

Trans Nzoia

Case Outcome:

Application allowed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 164 OF 2017

MATUI NAIBEI...................................................................PLAINTIFF

VERSUS

GLADYS MASAI............................................................DEFENDANT

RULING

1. By a Notice of Motion dated

24/5/2021

and filed on

27/5/2021

brought under

Sections 1A, 1B, 3

and

3A

of the

Civil Procedure Act, Order 36 Rule 7

of the

Civil Procedure Rules

, the defendant/applicant seeks orders that the order made on

12/4/2021

closing the defence case be set aside and upon setting aside the order made on

12/4/2021

, the defence case be re-opened and the defendant be allowed to testify and that the costs this application do abide to the outcome of the main suit.

2. The application is supported by the affidavit of Michael Wafula, the defendant’s counsel, sworn on

24/5/2021.

The application is premised on the grounds that this suit was scheduled for hearing on

12/4/2021

and the defence never attended court and the defence was deemed as closed; that the defendant’s advocate never saw the hearing notice for that date and thus could not attend; that it will be fair and just if the defence case is opened and the defendant together with her witnesses are allowed to testify; that no party shall be prejudiced if the orders sought are granted; it is stated that the demands of justice favour the grant of the orders sought.

The Response

3. No response was filed to the application.

Submissions

4. Parties did not file any submissions to the application.

Determination

5. I have considered the application. The applicant’s counsel states in the supporting affidavit that he never saw the hearing notice in respect of the hearing scheduled for

12/4/2021

. On that day the matter was called out and neither the defendant nor his counsel were in court. I have considered that the subject hearing date was fixed in the absence of the parties and their counsel when the matter came up for mention on

2/12/2020

. I have also perused the court file and found no evidence that the defendant’s counsel was served with a hearing notice for that date. Consequently the claim that he was not aware of the hearing date must be considered to be true and the instant application has merit.

6. I therefore grant the application dated

24/5/2021

and I also order that the matter shall be mentioned by way of teleconference on

1/7/2021

for the fixing of a hearing date.

By this ruling the parties are so notified.

It’s so ordered.

DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 28TH DAY OF JUNE, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.