Kenya Wildlife Service v County Government of Taita Taveta [2021] KEELC 4592 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC NO. 160 OF 2010

KENYA WILDLIFE SERVICE...................................................................PLAINTIFF

VERSUS

COUNTY GOVERNMENT OF TAITA TAVETA..................................DEFENDANT

RULING

1. The application for determination is the Notice of Motion dated 13th August 2019 in which the plaintiff/applicant is seeking to set aside the order dismissing the plaintiff’s suit issued on 6th December, 2018 by Hon. Lady Justice N. Matheka and to have the suit reinstated for hearing on merit.  The application is brought under the provisions of Article 159 (2) (d) of the Constitution of Kenya, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 12 Rule 17, Order 17 Rule 2 (2) and Order 51 Rules 1 and 4 of the Civil Procedure Rules.

2. The application is supported by the affidavit of Partick Lutta sworn on 13th August, 2019 and is premised on the grounds that the suit was dismissed for non-attendance on 6th December, 2018 although the applicant’s advocates did not receive the Hearing Notice dated 16th November, 2018 from the court scheduling the matter for hearing on 6th December, 2018. That the dismissal order came to light on 17th July, 2019 vide email from the Deputy Registrar, Hon. C. A. Ogweno, and upon perusal of the court file, the plaintiff’s Advocates noted that there was a Hearing Notice dated 16th November, 2018 addressed to the parties’ advocates indicating that the matter was listed for hearing on 6th December, 2018. It is the applicant’s case that the hearing notice was not served upon their advocates and therefore it was not possible for them to know of the hearing date and attend court. That the plaintiff’s advocates have always been keen on attending court and therefore would have attended court during the hearing if they had been made aware of the hearing date. That the plaintiff has always been diligent in setting the suit down for hearing and been ready to proceed. That the plaintiff has an arguable case with high chances of success and it would be in the interest of justice that the suit be reinstated and determined on merit. That the plaintiff shall suffer great prejudice if the suit is not reinstated.

3. The defendant was served but did not file any response, therefore the application is not opposed.

4. I have considered the application. This suit was listed by the court for hearing on 6th December, 2018. When the matter came up for hearing on 6th December, 2018 before N. Matheka J, none of the parties was present in court and the court dismissed the case for non-attendance. Order 12 Rule 3 of the Civil Procedure Rules allows the court to dismiss a suit for non-attendance while Rule 7 allows the aggrieved party to apply to set aside that order and reinstate the suit.

5. The reason given by the applicant for their non-attendance on 6th December, 2018 is that their advocates were not served with a hearing notice, the hearing date having been fixed by the court. I have perused the court record. The matter was last in court on 13th March, 2018 when the court directed the parties to take a hearing date from the registry. The matter was listed by the court for hearing on 6th December, 2018. From the record, there is no evidence that the parties or their advocates were notified of the hearing date. From the material before court I am satisfied that the failure to attend court was not intentional or deliberate on the part of the applicant and their advocate. In my view, the failure to attend court has sufficiently been explained and the same is excusable. Further, the application is not opposed.

6. For the foregoing reasons, I am satisfied that the Notice of Motion dated 13th August, 2019 is merited. The application is allowed. The order made on 6th December, 2018 dismissing the suit is set aside and the case is reinstated for hearing on merit. Each  party to bear own costs.

DATED, SIGNED and DELIVERED at MOMBASA this 27TH day of January 2021.

__________

C.K. YANO

JUDGE

IN THE PRESENCE OF:

Yumna Court Assistant

C.K. YANO

JUDGE