Sweetland Company Limited & Hillary Kiboinett v Transnational Bank Limited [2018] KEELC 1882 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT ELDORET

E & L CASE NO. 280 OF 2016

SWEETLAND COMPANY LIMITED.........1ST PLAINTIFF/APLICANT

HILLARY KIBOINETT..............................2ND PLAINTIFF/APPLICANT

VERSUS

TRANSNATIONAL BANK LIMITED......DEFENDANT/RESPONDENT

RULING

On the 7. 12. 2017, the suit herein was slated for hearing.  The plaintiff’s lawyer was in court but the plaintiff was absent. The plaintiff’s lawyer sought for 7 days to file witness statements despite the fact that the law requires the plaintiff to file the suit with witness statements and documents.  Technically, the plaintiff’s advocate was applying for adjournment.  The matter was adjourned to 1. 00 p.m. and the plaintiff’s advocate was given time to contact the client.  At 2. 00 p.m, the plaintiff had not turned up and therefore, the matter was dismissed for non-attendance. The plaintiff had been served with a hearing notice in August 2017.

The plaintiff took 6 days to make an application dated 13. 12. 2017 to set aside orders made on 7. 3.2017 dismissing the suit and effectively applied for reinstatement of the suit.  This is the application before me for determination.  The application is based on grounds that the applicant had no information that the suit had been slated for hearing on 7. 12. 2017.

It is said that the applicant runs business in Nairobi and Kitengela and hence could not be reached.  He claims to have not been aware of the hearing date.  The applicant states that he has been condemned unheard.  The main reason for not appearing in court as scheduled was that the plaintiff was not informed by his advocate.  I am convinced that the failure by the plaintiff to attend court was caused by his advocate who failed to inform him that the matter was slated for hearing on 7. 12. 2017.  This is a case where mistake of counsel should not be visited upon the client.

I therefore do allow the application and do hereby review the orders made on 7. 12. 2018.  The suit herein is reinstated with the interim orders.  Costs of the application to be borne by the plaintiff in any event. Orders accordingly.

Dated, signed and delivered at Eldoret this 27th day of July, 2018.

A. OMBWAYO

JUDGE