FLORENCE ATIENO ONG'ORE VS PETER OTIENO OKERO

REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISII
ELC NO.158 OF 2015
FLORENCE ATIENO ON’GORE (Suing on behalf and as the Administratix of the estate of Samuel Ong’ore Obuya) …………………………………………………………. PLAINTIFF
VERSUS
PETER OTIENO OKELLO ……………………………………...…………… DEFENDANT
RULING
(Application to reinstate suit dismissed for want of prosecution; no proof of service of the notice; application allowed)
1. The application before court is that dated 17 April 2024 filed by the plaintiff. The application seeks that the order of 24 March 2017, dismissing the suit for want of prosecution, be set aside and the suit be reinstated. The defendant/respondent has not filed anything to oppose the application.
2. From the body of the application and the supporting affidavit, it is averred that the suit was dismissed on 24 March 2017, despite there being no service of the notice to show cause upon counsel then on record for the applicant. It is averred that counsel wrote several letters asking for the whereabouts of the file without any response, until 21 August 2023 when a reply came that the file has been sent to the National Archives at Kisumu. After the file was traced and returned it was discovered that the matter had been dismissed for want of prosecution.
3. I have gone through the record. I see that indeed the suit was dismissed on 24 March 2017 after a notice to show cause had been issued. What is not clear is whether the said notice was in fact served upon the parties, particularly the applicant. On this, I have seen no proof.
4. I will give benefit to the applicant that her counsel was never served with the notice of dismissal of suit. Probably if they were served, they would have attended court to show cause why the case ought not to be dismissed. The delay in filing the application is also explained. I see that counsel for the applicant had written various letters asking about the whereabouts of the file and there was also confusion as to whether the suit is registered as Kisii ELC No. 158 of 2014 or No. 158 of 2015 which may have contributed to the challenge in tracing the file.
5. Given the above, I will allow the application. I set aside the order dismissing this suit made on 24 March 2017. The suit is reinstated and the plaintiff should now take steps to set it down for hearing.
6. I make no orders as to the costs of this application.
7. Orders accordingly.
DATED  AND  DELIVERED  THIS  6  DAY  OF  NOVEMBER  2024

JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT KISII