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ELCAllowedNotice of motion dated 10th June 2019 (ELC suit; suit number not stated in judgment)· [2020] KEELC 2094 (KLR)

Peter C. Gatoto Karanja & another v Stephen Karanja Gatoto & another [2020] KEELC 2094 (KLR)

Environment and Land Court
18 June 2020
LKL. Komingoi
395 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a land suit dismissed when the plaintiff missed hearing due to illness backed by a medical note.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (L. Komingoi, J) determined a notice of motion dated 10th June 2019 brought under Order 12 rule 7 of the Civil Procedure Rules by the plaintiffs. The motion sought to set aside the orders of 20th May 2019 dismissing the plaintiffs' suit for non-attendance, and to have the suit reinstated for hearing. It was supported by an affidavit of James Wanyoike Gatoto, the 2nd plaintiff, who explained that non-attendance was due to unavoidable circumstances, namely illness. The application was opposed through a replying affidavit sworn by Stephen Karanja Gatoto, the 1st defendant, and was canvassed by oral submissions. The court framed a single issue: whether the application was merited. Relying on a letter dated 6th June 2019 from a clinical officer at Ngewa Health Center, which confirmed that the 2nd plaintiff, described as elderly, sought treatment and was advised to take bed rest from 17th to 21st May 2019, the judge was satisfied he was indisposed on 20th May 2019, the date of dismissal. Finding justifiable reasons for reinstatement and that the plaintiffs deserved an opportunity to ventilate their claim, the court set aside the orders of 20th May 2019, reinstated the suit, and ordered the plaintiffs to bear the costs of the application. The ruling was delivered in Nairobi on 18th June 2020.

Key legal issues

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01

Whether the plaintiff's non-attendance on 20th May 2019 was excusable and warranted reinstatement of the suit under Order 12 rule 7

Holding

The application was merited; the dismissal order was set aside and the suit reinstated, with costs to the plaintiffs

Reasoning

The court accepted medical evidence from a clinical officer at Ngewa Health Center showing the 2nd plaintiff sought treatment and was advised on bed rest from 17th to 21st May 2019, spanning the date of dismissal. Satisfied that the non-attendance was due to unavoidable circumstances and that the plaintiffs were keen to prosecute their claim, the court found justifiable reasons to reinstate so the plaintiffs could ventilate their claim.

p. 1

Legal principles established

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  • A suit dismissed for non-attendance may be reinstated where the party shows justifiable reasons for non-attendance

Court orders

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  1. 1.That the orders of 20th May 2019 are hereby set aside and the plaintiff's suit is reinstated
  2. 2.The plaintiffs shall bear costs of this application

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 rule 7
Jurisdiction invoked
Order 12 rule 7 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter C. Gatoto Karanja & another v Stephen Karanja Gatoto & another [2020] KEELC 2094 (KLR)", Case Analysis (2020). Notice of motion dated 10th June 2019 (ELC suit; suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2094/eng@2020-06-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.