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JudgmentLUCY WANGARI GICHURU VS SAMUEL GATHUO GICHURU3 min read

LUCY WANGARI GICHURU VS SAMUEL GATHUO GICHURU

Environment and Land Court at Nyahururu Environment and Land Court · · L. Mbugua

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NYAHURURU

ELC CASE NO. E006 OF 2023

LUCY WANGARI GICHURU………………….……………. PLAINTIFF

VERSUS

SAMUEL GATHUO GICHURU………..…….………….. DEFENDANT

RULING

  1. This suit was dismissed on 30.9.2024 for want of prosecution. The Plaintiff has filed a Notice of Motion application dated 8.10.2024 seeking orders for reinstatement of the same.   The application is based on the grounds listed on the face of the application and on the supporting affidavit of Aron Okumu, advocate for the plaintiff. He avers that on the date of the hearing, the plaintiff’s daughter contacted their office informing them that plaintiff was unwell  and was admitted in hospital. The deponent then tried to log into the virtual session so as to take out the matter, but was not successful. He then called the defendants firm of advocates to seek indulgence and adjourn the case, but the following day, they learnt that the case had been dismissed. 
  2. The application is opposed by one Simon Wangari via his affidavit dated 5.12.2024. He contends that the letter from the hospital doesn’t give sufficient details of plaintiff’s illness, that the issue of her advocate encountering challenges in logging in doesn’t count as the matter was to be heard in person and that making a call to the defendants did not excuse the plaintiff from attending court.
  3. I have considered the rival arguments including the submissions of the parties. The issue for determination is whether the suit which was dismissed on 30.9.2024 should be reinstated.
  4. The case of Mbogo vs Another and Shah EALR 1968, the court laid down the principles guiding reinstatement of a suit, wherein the court held that it is the court’s discretion to set aside an ex-parte order of the nature of a dismissal order, and this is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error.
  5. In  Philip Chemwolo & another vs Augustine Kubede (1982-1988) KAR 103, it was held that:

“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit”

  1. While in  Mwangi S. Kimenyi vs Attorney General and Another [2014] Eklr,  the court stated that;

“The decision whether a suit should be re-instated for trial is a matter of justice and it depends on the facts of the case, See Ivita V Kyumbu [1984] KLR 441, Chesoni, J. (as he then was). “The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay.  Justice is justice to both the Plaintiff and Defendant;…”

  1. In  Gold Lida Limited vs NIC Bank Ltd & 2 other (2018) eKLR it was held that:

“The overriding objective of our constitutional and statutory framework on civil procedure is to achieve substantive justice to the litigants”.

  1. I find that the plaintiff has availed a medical document indicating that she was admitted in hospital on 20.9.2024 and was discharged on 3.10.2024. This court has no reasons to cast aspersions on the said document. On the averment that the hearing was supposed to be in-person, I find that the records of 19.6.2024 when the hearing date of 30.9.2024 was taken are thin on how the matter was to be heard. The records simply indicates “Hearing of suit on 30.9.2024”. Further, I find that the date of 30.9.2024 happened to be the first time the matter was listed for hearing. Thereafter the suit was dismissed, the current application was filed speedily in a months time.
  2. The dictates of justice in this matter demand that the plaintiff be given an opportunity to be heard. I will also not condemn her on costs in view of the fact that she was admitted in hospital. Thus the application dated 8.10.2024 is allowed and each party is to bear their own costs of the application.   

DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 20TH DAY OF FEBRUARY, 2025 THROUGH MICROSOFT TEAMS.

LUCY N. MBUGUA

JUDGE

In the presence of:

Kandie H/B M.Njenga  for Plaintiff / Applicant

Mutai H/B for Mrs Wamae for the Defendant / Respondent

    LUCY WANGARI GICHURU VS SAMUEL GATHUO GICHURU LUCY WANGARI GICHURU VS SAMUEL GATHUO GICHURU