Mwinzi v Kamau & 2 others (Environment & Land Case 18 of 2011) [2024] KEELC 13315 (KLR) (20 November 2024) (Ruling) Neutral citation: [2024] KEELC 13315 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS ENVIRONMENT & LAND CASE 18 OF 2011 A NYUKURI, J NOVEMBER 20, 2024 BETWEEN JOSHUA MUTEMI MWINZI .................................................................... PLAINTIFF AND PETER KIMANI KAMAU .............................................................. 1ST DEFENDANT SIMON WAINAINA KIMANI ....................................................... 2ND DEFENDANT GEOFREY KARIUKI ....................................................................... 3RD DEFENDANT RULING 1. Before court is a notice of motion dated 6th June 2022 led by the plainti seeking orders that the order made on 9th February 2022 dismissing this suit for want of prosecution be set aside and the suit be heard on merit. The application is premised on the supporting adavit sworn by Joshua Mutemi Mwinzi, the plainti on 6th June 2022. The applicant’s case is that he was not aware that the matter was coming up on 9th February 2022 when it was dismissed for want of prosecution due to the failure of his advocate to x it for hearing. He urged the court not to punish him for his advocate’s mistakes saying his advocate kept telling him to wait for him to act on the matter. 2. No response was led in regard to the application. Analysis and determination 3. The court has considered the application and the only issue that arise for determination is whether the applicant deserves orders setting aside orders dismissing the suit herein for want of prosecution. 4. Order 12 Rule 7 of the Civil Procedure Rules provides for the jurisdiction of this court to set aside or vary an order dismissing a suit for want of prosecution as follows; https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13315/eng@2024-11-20 1
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Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just. 5. Therefore, where the plainti fails to attend court on the hearing date and the suit is dismissed for want of prosecution, the court has the discretion to set aside such dismissal orders on terms that are just. The applicant should therefore explain to the court’s satisfaction the reason for non attendance. 6. In this case, this matter came up for hearing on 9th February 2022. The parties were served by the court baili to appear on that date. Counsel for the plainti was duly served, as the record shows. However, on 9th February 2022, the plainti and his advocate failed to attend court resulting in dismissal of the suit for want of prosecution. The plainti has explained that he was not aware of the hearing date as his counsel then on record did not inform him of the same. This position is not rebutted and therefore the court agrees with the plainti that failure by counsel to inform the plainti of the hearing date was a mistake by the plainti’s advocate and the consequences of the same should not be visited on the plainti. On the hearing date, the defendants were also not in court and it is therefore clear that they will not suer prejudice if the dismissal orders are vacated. 7. In the premises, this court nds that the plainti’s application dated 6th June 2022 is merited and the same is hereby allowed as follows; 8. a. The orders made on 9th February 2022 dismissing the suit herein for want of prosecution are hereby set aside, and the plainti’s suit is hereby reinstated for hearing and determination on merit. b. There is no order as to costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 20TH DAY OF NOVEMBER, 2024 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM A. NYUKURI JUDGE In the presence of;** Ms. Makau holding brief for Mr. Mutia for applicant No appearance for respondents Court assistant – Josephine mks eLC no. 18 of 2011 – ruling 0 https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13315/eng@2024-11-20 2
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