Aveco Ltd v John Joseph Ndung'u Mwenja Partners Ltd & 2 others [2024] KEELC 6564 (KLR)

Aveco Ltd v John Joseph Ndung'u Mwenja Partners Ltd & 2 others (Environment & Land Miscellaneous Case E131 of 2023) [2024] KEELC 6564 (KLR) (9 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6564 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Miscellaneous Case E131 of 2023

LN Mbugua, J

October 9, 2024

Between

Aveco Ltd

Plaintiff

and

John Joseph Ndung'u Mwenja Partners Ltd

Defendant

and

Shamji Kalyan Pindoria Limited

Respondent

and

Nairobi County Government

Defendant

Ruling

1. Before me is the Applicant’s Notice of Motion dated 6. 7.2023 seeking orders for the reinstatement of the suit which was dismissed on 3. 7.2024. The applicant contends that their advocate was ill, that is why they were absent on the date of 3. 7.2024.

2. In opposition thereof, the 1st respondent has filed a replying affidavit through its director, one Harilal Shamji Kanji dated 2. 10. 2023 where they contend that no sufficient reasons have been advanced to warrant the issuance of the orders sought, adding that the matter was wrongly filed as there is a substantive appeal.

3. I have considered the issues raised herein. The decision whether a suit should be re-instated for trial is a matter of justice and it depends on the facts of the case, See Mwangi S. Kimenyi vs Attorney General and Another [2014] eKLR.

4. I find that this matter is fresh, and that the application was filed promptly after the dismissal of the suit. I would also not question the reasons given for none appearance, seeing that sickness is unpredictable. The issue as to whether the suit is valid can only be raised when the said suit is active. In the circumstances, the application dated 6. 7.2023 is allowed but with costs to the 1st respondent.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9THDAY OF OCTOBER, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Odinga holding brief for M/s Muganda for the PlaintiffAdongo holding brief for Mr. Ochid for 1st & 2nd Respondents Court Assistant: Joan