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High CourtAllowedMisc Civ Appli 56 of 2005

Republic v District Land Adjudication and Settlement Officer Transmara Division & 2 Others, Ex-Parte Silfanus Ojalo Ogutu

High Court of Kenya
16 June 2006
KBKaburu Bauni
333 words in judgment
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The bottom line

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Kenya's High Court ruled a case cannot be dismissed for non-attendance if the party was never told the hearing date.

What this practically means

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Executive summary

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This ruling of the High Court at Kisii (Kaburu Bauni J) dealt with an application to set aside orders of 4th October 2005 by which the court dismissed the ex-parte applicant's judicial review application dated 23rd September 2005. The underlying substantive matter sought prohibition and an order of quashing against the District Land Adjudication and Settlement Officer Transmara and his surveyor, to restrain alteration of the names of registered proprietors of land parcels Oldanyatti/476 and 477 and to quash proceedings of 15th February 2005 and an eviction order, on the basis that the Land Adjudication Act (Cap 284) procedures had been disregarded. In the present ruling, counsel for the applicant explained non-attendance on the hearing date on the ground that the date fixed by the court was never communicated to counsel or the applicant. Counsel for the respondents, Mr Ondongo, opposed, contending that an applicant who files under certificate of urgency should follow up on the fixing of the hearing date. The court found that neither counsel nor the applicant attended when the matter came up, and that there was no evidence that the Deputy Registrar had notified them of the hearing date. On that basis the court allowed the application, set aside its orders of 4th October 2005, thereby reinstating the application dated 23rd September 2005, and ordered costs in the cause. The substantive judicial review questions remain for determination at the inter partes hearing.

Key legal issues

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01

Whether dismissal for non-attendance should be set aside where the applicant had no notice of the hearing date

Holding

The dismissal orders of 4th October 2005 were set aside and the application reinstated because there was no proof of notification of the hearing date.

Reasoning

The court observed that when the matter came up on 4th October 2005 neither counsel nor the applicant attended. Counsel attributed absence to lack of notice of the fixing date. The court found no evidence that the Deputy Registrar notified counsel of the hearing date, so the applicant should not suffer dismissal for non-attendance. The respondent's argument that an applicant filing under certificate of urgency must follow up the fixing was rejected on the facts.

p. 2

Legal principles established

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  • Where an applicant was not notified of a hearing date fixed by the court, a dismissal for non-attendance ought to be set aside to allow the matter to be heard on the merits.

Court orders

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  1. 1.The application to set aside is allowed
  2. 2.The court's orders made on 4th October 2005 dismissing the application dated 23rd September 2005 are set aside
  3. 3.The application dated 23rd September 2005 is reinstated
  4. 4.Costs in the cause
Jurisdiction invoked
Inherent power of the High Court to set aside its own orders; application brought under Civil Procedure Rules in a judicial review matter under the Land Adjudication Act (Cap 284)

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, "Republic v District Land Adjudication and Settlement Officer Transmara Division & 2 Others, Ex-Parte Silfanus Ojalo Ogutu", Case Analysis (2006). Misc Civ Appli 56 of 2005. Source:

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