CHRISTINE GACHURU & 2 OTHERS V VINCENT GICHURU GAITHO & 2 OTHERS[2012] eKLR [2012] KEHC 3714 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAIROBI

MILIMANI LAW COURTS

Environmental & Land Case 958 of 2006

CHRISTINE GACHURU

JAVERSON MACHARIA NJUGUNA

ELIZABETH NJERI NJUGUNA ...………..................……. PLAINTIFFS

VERSUS

VINCENT GICHURU GAITHO

PATRICK MAGIRI GAITHO

EVELYN WAMBUI KIARIE ...…....................................... DEFENDANTS

DIRECTIONS

The originating summons dated 8th September, 2006, came up for hearing before me on 6th October, 2011. Both parties made oral and relied on written submissions and the judgment was scheduled for 17th February, 2012.

However, as I set out to write the Judgment, I encountered certain difficulties presented by issues that cannot be resolved by affidavit evidence. Upon perusal of the court file (although the proceedings have not been typed), I am able to discern from an order made by Rawal, J (as she then was) that the originating summons be heard by oral evidence based on affidavits. This means that if parties gave oral evidence, they can be subjected to the court room processes of examination and cross examination.

For the aforesaid reasons and in the interest of justice, I am unable to determine this suit by way of submissions. I direct that the matter be fixed for hearing by way of oral evidence de novo. Matter be mentioned on priority basis before the presiding judge, Land and Environmental Division for directions.

Directions given and signed this 17th day of February, 2012.

MARTHA KOOME

JUDGE OF APPEAL

Note:

This application was heard and concluded on 30th November, 2011, when I was a Judge of the High Court. The matter was pending for ruling when I was appointed as a Judge of the Court of Appeal. I proceed to write and append my signature thereto in my new capacity.