Case ID:181804

Philip Meli Rono v John Chebai Mwela & 2 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 38 of 2019

Parties:

Philip Meli Rono v John Chebai Mwela, Keneth Saisi Mudaki & Land Registrar, Trans Nzoia

Date Delivered:

22 Sep 2021

Case Class:

Civil

Court:

Environment and Land Court at Kitale

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Philip Meli Rono v John Chebai Mwela & 2 others [2021] eKLR

Court Division:

Environment and Land

County:

Trans Nzoia

Case Outcome:

Application granted in part

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. 38 OF 2019

PHILIP MELI RONO.................................................................................PLAINTIFF

VERSUS

JOHN CHEBAI MWELA...............................................................1

ST

DEFENDANT

KENETH SAISI MUDAKI............................................................2

ND

DEFENDANT

THE LAND REGISTRAR, TRANS NZOIA................................3

RD

DEFENDANT

RULING

The Application

1. This is a Ruling of a Notice of Motion dated

26/5/2021

and filed in court on

27/5/2021

brought under

Article 50

and

159

of the

Constitution

and

Order 12 Rule 3

and

7, Order 51 Rule 15

of the

Civil Procedure Rules

and

Section 3A

of the

Civil Procedure Act.

The plaintiff sought the following orders in his application:

(1) …spent

(2) That the order of this honourable court made on the 26/5/2021 dismissing the suit for non-attendance by the plaintiff and his advocate with all consequential orders be reviewed, varied, set aside and/or vacated.

(3) That the main suit filed in this suit on the 30/4/2019 be reinstated.

(4) That such other and/or further order do issue in the interests of justice.

(5) That cost of this application be provided for.

2. The application is supported by the affidavit sworn on

26/5/2021

by the plaintiff’s counsel. The grounds upon which the application is made are that the suit was before the dismissal pending final determination by this court; that the subject matter of this suit and the real controversy between the parties herein has not been settled; that the plaintiff was not aware of the intention of the court to dismiss this matter; that the plaintiff did not attend court for the hearing of this matter because of matters beyond his control and failure to attend the hearing of the matter was not intentional; that the plaintiff shall suffer great and irreparable damage if the instant application is not allowed; that the defendants will suffer no prejudice at all upon grant of the orders sought herein and that it is only fair and in the interests of justice that the application be allowed.

The Response

3. The instant application is unopposed.

The Submissions

4. No submissions were filed on behalf of the parties.

Determination

5. I have considered the application.

6. The genesis of the instant application is that the instant suit was dismissed for want of prosecution on

25/5/2021

when all the parties failed to attend court.

7. The plaintiff avers that the failure to attend court was not intentional and the defendant has not risen to aver the contrary. It is the normal approach by this court that disputes before it should as far as is possible be resolved by way of hearing on merits. I think the plaintiff has by his affidavit demonstrated that the failure to attend court was inadvertent and he should be given a second chance to ventilate his grievance against the defendants.

8. For the foregoing reasons I find that the application dated

26/5/2021,

which was filed only one day after the dismissal order was made, has merit and it is hereby granted as prayed in

prayers nos (2)

and

(3)

thereof. The costs of the application shall be in the cause.

It is so ordered.

DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 22ND DAY OF SEPTEMBER, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.