Paul Francis Njoroge v Annah Nduta Njoroge & 5 others [2020] KEELC 3034 (KLR)

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT ELDORET ELC CASE NO.36 OF 2013 PAUL FRANCIS NJOROGE.............................................................PLAINTIFF =VERSUS= ANNAH NDUTA NJOROGE...................................................1 ST DEFENDANT JOSEPH KINYUA MWANGI..................................................2 ND DEFENDANT PAUL OCHIENG ODEK..........................................................3 RD DEFENDANT DAVID NGANGA KINYENI.....................................................4 TH DEFENDANT DANIEL WANYOIKE KIGUNI................................................5 TH DEFENDANT GICHUHI NJOROGE KAMAU................................................6 TH DEFENDANT RULING This ruling is in respect of an application dated 29th November 2019 by the plaintiff/applicant seeking to set aside the orders dated 28 th November 2019 dismissing the application dated 14t November 2019 and setting it down for hearing. Counsel agreed to canvass the application by way of written submissions which were duly filed. Counsel for the plaintiff/applicant submitted that he did not deliberately fail to attend court so as to forestall or obstruct course of justice. That the plaintiff was present in court but did not hear when the matter was called out. Counsel further submitted that he arrived in court a few minutes after the matter had been dealt with and dismissed for non-attendance. That the application was filed timeously, that is a day after the dismissal. Mr. Momanyi submitted that there would be no prejudice that the defendants would suffer if the dismissed application is reinstated and heard on merit. Counsel therefore urged the court to allow the application as prayed. Mr Chepkwony Counsel for the defendant/respondents opposed the application and submitted that the applicant has not tendered any sufficient reason or valid explanation for non-attendance on 28 th November 2019. Counsel submitted that the plaintiff/applicant will not suffer any prejudice if the application is dismissed and the suit was also dismissed for lack of merit. Counsel therefore urged the court to dismiss the application with costs to the defendants. ANALYSIS AND DETERMINATION The issues for determination in an application for reinstatement of a dismissed application or suit for non-attendance are as to whether the application was filed without undue delay and whether there was sufficient cause why the applicant did not attend court. It is important to understand what sufficient cause is. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances of each case. See the case of Okiya Omtata Okoiti & another v Okiya Omtata Okoiti & 4 others [2016] eKLR where the same question was posed and was answered as follows:

page 1 of 2