Case ID:180698

Redeemed Gospel Church v John Egielan; William Abok (Interested Party) [2021] eKLR

Case Metadata

Case Number:

Land Case 52 of 2020

Parties:

Redeemed Gospel Church v John Egielan; William Abok (Interested Party)

Date Delivered:

06 Aug 2021

Case Class:

Civil

Court:

Environment and Land Court at Kitale

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Redeemed Gospel Church v John Egielan; William Abok (Interested Party) [2021] eKLR

Court Division:

Environment and Land

County:

Trans Nzoia

Case Outcome:

Suit shall be mentioned on the 6/10/2021 for issuance of a hearing date

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. 52 OF 2020

REDEEMED GOSPEL CHURCH.....................................

PLAINTIFF

VERSUS

JOHN EGIELAN...............................................................DEFENDANT

WILLIAM ABOK...............................................INTERESTED PARTY

RULING

The Application

1.

The background to the instant application is that the instant suit was fixed for hearing on

4/5/2021

when the Ms. Masai appeared holding brief for Mr. Ambutsi for the plaintiff and informed the court that Mr. Ambutsi had failed to trace his client whereupon the court dismissed the suit with costs for want of prosecution on the same day notwithstanding the submission of Ms. Efedha holding brief for Mr. Mbugua for the defendant that Mr. Mbugua was not objecting to the adjournment of the matter on that date.

2.

The instant Notice of Motion is dated

11/5/2021

and filed in court on

28/5/2021

and is brought under

Section 1A, 1B,

and

3A

of the

Civil Procedure Act

and

Order 51 Rule 15

of the

Civil Procedure Rules.

In it, the plaintiff sought the following orders:

(a) That the order dismissing the plaintiff’s suit together with all other consequential orders issued on 4/5/2021 be and is hereby set aside.

(b) That this honourable court be pleased to reinstate the plaintiff’s suit for hearing and determination.

(c) Costs of this application be provided for.

3.

The application is supported by the affidavit of the plaintiff’s counsel sworn on

11/5/2021

. The grounds on the face of the application and in the supporting affidavit are that the counsel had finally found his client through a third party on

3/5/2021

; that unfortunately the plaintiff (though the fact that the plaintiff named is a church) fell ill and opted to seek medical attention and could not therefore attend court on

4/5/2021;

that the applicant is keen on prosecuting the suit; that the plaintiff has a good case and this court had in appreciation of that fact issued interim orders protecting the suit property and the respondent would suffer no prejudice if the orders sought were issued.

The Response

4.

Notwithstanding Ms Efedha’s submission on the date of dismissal, the defendant surprised the plaintiff with some quite strong opposition to the instant application for setting aside of the dismissal orders. The defendant filed grounds of opposition dated

8/6/2021

and opposed the plaintiff’s application dated

11/5/2021

on the following grounds:

(1) The application is frivolous, vexatious and an abuse of the due process.

(2) That the reasons advanced for the failure to prosecute the suit on 4/5/2021 are not justiciable.

(3) The interim orders complained about had lasted their life and were ripe for discharge.

(4) The deponent of the affidavit in support is an advocate who is barred by dint of Order 19 Rule 3 of the Civil Procedure Rules from deponing on matter in the personal knowledge of another.

(5) Default to prosecute its case has consequences, which the plaintiff has not live with.

(6) Plaintiff has not offered to pay costs to court and the defendant and is therefore unworthy of the court’s discretion.

5.

However the interested party did not oppose the application dated

11/5/2021

6.

Submissions

7.

The parties filed their written submissions as ordered by the court.

Analysis and Determination

8.

I have perused the application, the supporting affidavit, the grounds of opposition and the submissions filed. The main issue that arise from the instant application is whether the applicant has established that it deserves the grant of the setting aside and reinstatement orders sought in the application.

9.

A bus receipt is attached to the supporting affidavit in proof of the fact that one

Joshua Masika

travelled to Kitale from Lodwar on

3/5/2021.

A further document a medical attendance sheet from Kitale county hospital is attached to the supporting affidavit showing that one

Joshua Masika

was ill on

4/5/2021.

10.

I consider the attachments mentioned in the preceding paragraph sufficient to persuade this court that the witness for the plaintiff had a plausible reason for not attending court on

4/5/2021

for the hearing of the suit. I also consider that the fact that the defendant had already conceded to the application for adjournment on the said date of dismissal without indicating that they had been ready to proceed or not disentitles them to raise any such stringent opposition or at all to the dismissal application.

11.

I have also considered that the suit sought to be reinstated concerns a land dispute and an organization, possibly with many members beyond the witness who failed to attend court. Consequently I find that the plaintiff’s application for setting aside dismissal orders has merit. Therefore I hereby exercise my unfettered discretion in favour of the plaintiff Church. The application dated

11/5/2021

is hereby granted in terms of

prayers nos (a)

and

(b)

thereof. The plaintiff’s suit is reinstated for hearing on the merits. Each party shall bear their own costs of the application. The suit shall be mentioned on the

6/10/2021

for issuance of a hearing date.

It is so ordered.

DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 6TH DAY OF AUGUST, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.