Amos Munyi Njue v Denis Murithi Mutegi & Linus Mugendi Mutegi [2017] KEELC 954 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC CASE NO 12 OF 2017

FORMERLY KERUGOYA ELC CASE NO. 639 OF 2013

AMOS MUNYI NJUE………………………………………......PLAINTIFF

VERSUS

DENIS MURITHI MUTEGI………………………………….…1ST DEFENDANT

LINUS MUGENDI MUTEGI…………………………………..2ND DEFENDANT

RULING

1. The applicant has filed this application under Order 12 Rule 7 of the Civil Procedure Rules and Sections 1A, 1B and 63(e) of the Civil Procedure Act. The application is dated 23rd May, 2017 and seeks the following orders:-

1. That the honourable court’s order/ruling dated 8. 3.2017 which dismissed this suit be set aside upon such terms as may be just.

2. That the costs of this application be in the cause.

2. The application has the following grounds:-

3. The suit was dismissed by the court on 8. 3.2017 citing the provisions of order 12 rule 1 and 3 of the Civil Procedure Rules.

4. Order 12 rule (7) provides for the discretional and unconditional setting aside of any order/ruling made pursuant to the provision of rule 1 and 3 above.

5. It shall be in the interest of justice that the suit be heard on merits for the avoidance of the condemnation of the applicant unheard.

6. The matter (sic) raised in the suit are weighty and very important in nature – hence the same ought to be determined exhaustively and lawfully to avoid irreparable loss, expense and / or damage to the applicant.

7. The applicant submits that the suit was dismissed at the instance of the court and not at the instance of the plaintiff. The applicant seems to suggest that a hearing date must be fixed at the convenience of the litigants. In this case, it is the court that fixed the hearing date. The applicant asks the court to strike a balance between convenience of the dismissal of the suit and the unproportional injustice visited upon the applicant.

8. A conspectus of the defendants’/respondents’ submissions is that the dismissal of the suit was properly and legally done. They say that as this application was filed 2 ½ months after the dismissal order was issued, the plaintiff shows that he was indolent in not only filing this application rather late but also for having not prosecuted his case many years after he filed it on 31st July, 2013.

9. I have perused the pleadings proffered by the parties in support of their assertions. I do note that the plaintiff does not deny knowledge of the hearing date. What his advocate is saying is that the date was not convenient to him.  But was it also not convenient for his client, the plaintiff?  I opine that a court’s calendar is directed by the court and not by the litigants.  Otherwise, the judicial process would be held to ransom by the litigants and their advocates.

10. Order 12, Rule 3(1) provides that if on the day fixed for hearing after the suit has been called on for hearing outside the court only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court. It should be noted that it is the presence of the plaintiff which is required. It is not the presence of the plaintiff’s advocate that is required. The advocate’s presence is only important because he can offer or send another advocate to offer an explanation why the suit should not be heard on the day fixed by the court. That explanation offers the basis for a good cause not to have the suit dismissed recorded by the court. That did not happen on the day this suit was dismissed by the court.

11. It is true that under order 12 rule 7, where a 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. Order 12 Rule 7 does not say that on application the court should or must set aside or vary the apposite judgment.

12. In this case the plaintiff does not explain why he did not come to court on the day fixed for hearing. Knowledge of the hearing date is not denied. I do not agree that convenience of the plaintiff’s advocate is a good ground for setting aside or varying the judgment that dismissed the suit.

13. In the circumstances, I find that this application lacks merit.

14. The application is dismissed.

15. Costs are awarded to the defendants.

16. It is so ordered.

Delivered in open court at Chuka this 29th day of November, 2017 in the presence of:

CA: Ndegwa

Njeru Ithiga for the Defendants/Respondents

Plaintiff or his advocate, Eddy Njiru, Absent

P. M. NJOROGE

JUDGE