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ELCAllowedNot stated in judgment· [2021] KEELC 4432 (KLR)

Mary Acheing Deya Okong’o & another v Joseph Obuge Ongota & another [2021] KEELC 4432 (KLR)

Environment and Land Court
4 February 2021
AOANTONY OMBWAYO
347 words in judgment
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The bottom line

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A Kenyan court reinstated a dismissed land case application because one party was hospitalised after a snakebite on the hearing day.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisumu delivered electronically on 4th February 2021 by Antony Ombwayo J, on an application by Mary Achieng Deya Okong’o and Corner Omondi Oduor against Joseph Obuge Ongota and the County Land Registrar. The applicants sought to set aside orders issued on 16th December 2020 dismissing their application dated 28th January 2020 (an application for stay of taxation of a bill of costs) for non-attendance, and to have that application reinstated for prosecution. They explained that on the hearing date one of them had been bitten by a snake and rushed to hospital, and that they only learnt of the dismissal upon recovery when they enquired at the registry. They argued that they had demonstrated sufficient interest in prosecuting the matter and that reinstatement would meet the ends of justice. The respondent did not file a replying affidavit and thus did not seriously challenge the allegations. The court found that the applicants had shown sufficient cause for failing to attend court and allowed the application. It set aside the orders of 16th December 2020, reinstated the application dated 28th January 2020 for hearing to its logical conclusion, and ordered costs in the cause. The judgment contains minor internal date inconsistencies but is otherwise straightforward.

Key legal issues

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Whether sufficient cause was shown for the non-attendance that led to dismissal of the application dated 28/1/2020

Holding

The applicants showed sufficient cause; the dismissal orders of 16/12/2020 were set aside and the application reinstated.

Reasoning

The applicants explained that they were unable to attend court on 16/12/2020 because one of them had been bitten by a snake and rushed to hospital. They only learnt of the dismissal upon recovery when they enquired at the registry. The respondent did not file a replying affidavit and so did not seriously contest the explanation. In the absence of any challenge, and to meet the ends of justice, the court found sufficient cause demonstrated and granted reinstatement.

p. 1

Legal principles established

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  • An applicant who shows sufficient cause for non-attendance, such as illness preventing attendance, is entitled to reinstatement of an application dismissed for non-attendance to meet the ends of justice.

Court orders

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  1. 1.The orders issued on 16/12/2020 dismissing the application dated 28/1/2020 for non-attendance are set aside
  2. 2.The application dated 28/1/2020 is reinstated for prosecution to its logical conclusion
  3. 3.Costs in the cause
Jurisdiction invoked
Inherent power of the court to set aside orders made in default and reinstate suits/applications for prosecution (not expressly cited in the judgment)

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, "Mary Acheing Deya Okong’o & another v Joseph Obuge Ongota & another [2021] KEELC 4432 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4432/eng@2021-02-04

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