Christopher Ngusu Mulwa, Patrick Wambua Yunga, Kelvin Perminus Kimanzi, Elizabeth Mbatha Yunga, Justus Ngundo Muthui, John Yunga, Maurice Mwendwa Muli, Kiliko Kimanzi, Richard Musyoki Kimani, Mathew Mutua Mwanzia, John Wambua Mwanzi, Joseph Kaseve, Bonface Muinde Masaa, Nzuki Kima Kyaka, Maurice Mboya Kamwilwa, Michael Mboya Nzule, Andrew Cornelius Kmutisya, Cecilia Mbenya Ki, Felistus Ndungi Kimanzi, Elizabeth Mumbi Mutemi, Geraldine Dorcas Kavemeb, Stephen Munyoki Mwanzia, Alphonce Kangwi Nzule, Charles Mutua, Lenard Musemb, Christopher Kavukua Mutisya, Monica Maingi, Reuben Mulingwa Mbuvi & Cosmas Muimi Kimanzi v County Government of Kitui & . Julius Malombe; National Land Commission (Interested Party) [2021] KEELC 346 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAD COURT

AT KITUI

ELC CASE NO. 25 OF 2021

(FORMERLY MACHAKOS ELC CASE NO.63 OF 2019)

IN THE MATTER OF ENFORCEMENT AND INTERPRETATION OF THE CONSTITTUTION

AND

IN THE MATTER OF ARTICLES 2,3,10,22,23,35,60,61,62,73,165,171,172,174,232,

258 AND 260 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA, 2010

BETWEEN

1. CHRISTOPHER NGUSU MULWA..........................................1STPETITIONER

2. PATRICK WAMBUA YUNGA................................................2ND PETITIONER

3. KELVIN PERMINUS KIMANZI...........................................3RD PETITIONER

4. ELIZABETH MBATHA YUNGA..........................................4TH PETITIONER

5. JUSTUS NGUNDO MUTHUI................................................5TH PETITIONER

6. JOHN YUNGA.........................................................................6TH PETITIONER

7. MAURICE MWENDWA MULI.............................................7TH PETITIONER

8. KILIKO KIMANZI.................................................................8TH PETITIONER

9. RICHARD MUSYOKI KIMANI...........................................9TH PETITIONER

10. MATHEW MUTUA MWANZIA.......................................10TH PETITIONER

11. JOHN WAMBUA MWANZI..............................................11TH PETITIONER

12. JOSEPH KASEVE.............................................................12TH PETITIONER

13. BONFACE MUINDE MASAA..........................................13TH PETITIONER

14. NZUKI KIMA KYAKA......................................................14TH PETITIONER

15. MAURICE MBOYA KAMWILWA..................................15TH PETITIONER

16. MICHAEL MBOYA NZULE.............................................16TH PETITIONER

17. ANDREW CORNELIUS KMUTISYA.............................17TH PETITIONER

18. CECILIA MBENYA KI......................................................18TH PETITIONER

19. FELISTUS NDUNGI KIMANZI.......................................19TH PETITIONER

20. ELIZABETH MUMBI MUTEMI.....................................20TH PETITIONER

21. GERALDINE DORCAS KAVEMEB................................21ST PETITIONER

22. STEPHEN MUNYOKI MWANZIA.................................22ND PETITIONER

23. ALPHONCE KANGWI NZULE......................................23RD PETITIONER

24. CHARLES MUTUA..........................................................24TH PETITIONER

25. LENARD MUSEMB.........................................................25TH PETITIONER

26. CHRISTOPHER KAVUKUA MUTISYA.......................26TH PETITIONER

27. MONICA MAINGI...........................................................27TH PETITIONER

28. REUBEN MULINGWA MBUVI.....................................28TH PETITIONER

29. COSMAS MUIMI KIMANZI.........................................29TH PETITIONER

AND

THE COUNTY GOVERNMENT OF KITUI.....................1ST RESPONDENT

DR. JULIUS MALOMBE....................................................2ND RESPONDENT

AND

THE NATIONAL LAND COMMISSION....................INTERESTED PARTY

RULING

1. The petitioners filed the application subject matter of this ruling under Section 1A, 1B and 3A of the Civil Procedure Act, Order 10 Rule 11, Order 51 rule 1 of the Civil Procedure Rules. The application is dated 1st December 2020 seeking the following orders;

A) Spent

B) That this Honourable Court be pleased to stay the execution of the order for costs including the taxation of the Bill of Costs dated 1st November, 2019, pending the hearing and determination of this application.

C) That this Honourable Court be pleased to set aside the orders of dismissal made on11th March, 2019 and to unconditionally reinstate the Petition.

D) That in any event, and in the alternative, this Honourable Court be pleased to review or vary the orders for payment of costs.

2. The application is supported by the affidavit of Christopher Ngusu Mulwa the 1st Petitioner and the same is based on the following grounds:

3. That this Petition was previously before the Environment and Land Court in Nairobi as ELC No.167 of 2016. And the same was transferred on 9th February, 2017 to the Environment and Land Court at Machakos and now it has a new case number, ELC 63/19. The Petitioners claim that on 9th March, 2017, when the matter was scheduled to be mentioned, the Advocate for the Petitioners proceeded to Machakos but the file was not listed and that the Machakos registry clerks could not trace the file because there was no record of whether or not the file had been received from Nairobi.

4. The Petitioners ‘lawyers claim that they could not get the new file and, consequently, they couldnotfix a hearing date as they did not know the file number and only got to know the new case number when they received a belated Notice of Dismissal from the Court on 13rh March, 2019.

5. They further claim that the Notice of Dismissal indicated that thematter was supposed to be in court on 8th March, 2019 for the Petitioners to show cause why the matter should be dismissed for want of prosecution.  As such, the Petitioners and their lawyers could not have been Court as the Notice of Dismissal was received late.

6. Upon perusal of the Court file, the Petitioners ‘lawyers discovered that the matter was actually in Court on 11th March 2019 and there was no appearance by any party.  The matter was dismissed Again, this took place even before the Petitioners ‘lawyers received the Court’s notice.They claim that had the Court’s Notice been received earlier, the Petitioners or their lawyers would have attended Court either on 8th March 2019 or 11th March 2019 and would have shown cause why the matter ought not to be dismissed.

7. They further indicate that by then, the matter had an Application dated 12th February, 2016 that only required a Ruling date since parties had filed submissions. They claim that the failure to fix the matter for either a mention or for hearing was inadvertent, it was not deliberate and the Petitioners never lost interest in prosecuting their matter.

8. Following the dismissal, the Respondents filed a Bill of Costs for taxation and the matter comes up for Submissions on 3rd December, 2020.

9. The Petitioners further claim that on 3rd March, 2016, the Court had issued a ruling granted conservatory orders in favour of the Petitioners. When the 1st Respondent learnt about the opinion expressed by the Court in the ruling on conservatory orders, the County Government of Kitui withdrew from the site, demolished the structures and handed the property back to the community.

10. They claim thatthe community then understood that action to mean that the County Government of Kitui did not want any agitation, that is why the County did not pursue the Petitioner and instead surrendered the suit property at the initial stages of the proceedings. As a matter of fact, the matters in dispute between the Parties were resolved when the County Government of Kitui withdrew from the suit property and demolished the structures.  The land is now back to the community and the community is using it.

11. The Petitioners contend that the order on costs is unfair and does not really follow the event and, in the circumstances, the Petitioners are bound to suffer irreparably if the Petition is not reinstated or if the order on costs is not varied or set aside as the Petitioner will have been condemned for no justifiable reason.

12. The Respondents did not file any replying affidavit or grounds of objection to the application. The court gave directions on 18th October 2021 for hearing of the application by way of written submissions. None of the parties filed any written submissions.

13. I have considered the application dated 1st December, 2020, the supporting affidavit and the attached documents. It is noted that the applicants seek to set aside the orders of the court dated 8th March, 2019 and reinstate the petition. Alternatively, the applicant seeks review of the order on costs. I have perused the court order subject matter of the current application and issued on 8th March 2019 and the same reads as follows.

“Order

Under Order 17 Rule 2(1) of the Civil Procedure Rules;

“Notice having been given to show cause why this suit should not be dismissed and there being no satisfactory response, the suit is hereby dismissed under order 17 Rule 2(1) of the Civil Procedure Rules”.

..............................

JUDGE

8. 3.2019

14. The said order makes no award of costs. It is therefore not clear under what circumstances the Respondents Counsel filed a bill of costs for taxation. The same were not awarded by the court and costs are thus not payable.

15. On the prayer for setting aside the order of dismissal of the Petition and reinstatement of the same, I find that the same lacks merit for the following reasons:

(1) The applicantsclaim to have received the Notice of dismissal of the suit on 13th March, 2019, while the current application to set aside the order of dismissal was filed on 1st December, 2020 a period of one year ten months. I find that the delay in filing the application herein is inordinate, inexcusable and no explanation has been given for the said delay.

(2) Further the conduct of the Petitioners in failing to take any action to prosecute the suit since 2017 is not indicative of a party who would have attended court for the Notice to show cause.

(3) I further find that the explanation given in the supporting affidavit for failure to take a date for hearing of the petition is not sufficient to move the court to exercise its discretion for the reason that if there was an issue with getting a new number for the suit after transfer from Nairobi to Machakos it was open to the applicant to write letters of inquiry on the whereabouts of the file either from Nairobi or Machakos Law Courts. No effort was made by the applicants until they were moved by the filing of the bill of costs and taxation of the same.

(4) The petitioners have further stated that when the 1st Respondent learnt about the opinion of the court in the ruling on the conservatory orders, the County Government of Kitui subsequently withdrew from the suit property, demolished the structures and handed the property back to the community.

(5) That the land is now back to the community and the community is using it. The said contention then may explain the reason the petitioners did not prosecute the petition after being granted the conservatory orders. It is the courts view that the petitioner’s application for reinstatement of the petitionwould be asking the court to engage in an academic exercise in proceeding to hear a petition while the petitioners have already achieved what they set out to achieve by filing the petition. The court is not inclined to make an order in vain.

Final Orders

The application dated 1st December 2020 lacks merit and the same is dismissed.

DATED, SIGNED AND DELIVERED AT KITUI THIS 16THDAY OF DECEMBER, 2021.

HON. LADY JUSTICE L. G. KIMANI

JUDGE

ENVIRONMENT AND LAND COURT, KITUI

Ruling read in open court in the presence of-

C. Nzioka……………………………………...Court Assistant

N/A…………………………………..….... for the Petitioner/Applicants

Muatine……………………………………………for the Respondents

N/A………………………………………………for the Interested Party