Daniel Kimanthi Mutisya & Josephat Waita Mutisya (Suing on behalf and beneficiaries of the Estate of Ndunda Waita – Deceased) v Chairman, Secretary, Treasurer & Mwea Farmers Co Limited [2019] eKLR [2019] KEELC 2209 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 168 OF 2016

DANIEL KIMANTHI MUTISYA

JOSEPHAT WAITA MUTISYA (Suing on behalf and beneficiaries of

the Estate ofNDUNDA WAITA – deceased) ....................PLAINTIFFS

VERSUS

THE CHAIRMAN..................................................1ST DEFENDANT

THE SECRETARY ...............................................2ND DEFENDANT

THE TREASURER ...............................................3RD DEFENDANT

MWEA FARMERS CO. LIMITED.....................4TH DEFENDANT

RULING

1. In the Notice of Motion dated 25th October, 2018, the Plaintiffs are seeking for the setting aside of the orders of this court of 27th September, 2018.  The Application is premised on the grounds that the Plaintiffs’ advocate’s non-attendance of court on 27th September, 2018 was occasioned by an honest and inadvertent mistake and that the Plaintiffs herein have a legitimate claim that should be heard on merit.

2. The Application is supported by the Affidavit of the Plaintiffs’ advocate who has deponed that although his representative informed him that he had fixed the suit for hearing on 26th September, 2018 which he diarized,  the matter had been actually been fixed for hearing on the 27th September, 2018 and not on 26th September, 2018; that he proceeded to serve the Defendants’ advocate with a hearing notice of 26th September, 2018 and that when he attended court on 26th September, 2018, he was informed by the registry that the matter was coming up for hearing on 27th September, 2018.

3. According to counsel, on 27th September, 2018, he sent a representative to have the matter adjourned on account that he had mis-diarized the date; that while his representative was still looking for an advocate to hold his brief, he found the matter already dismissed and that the Plaintiffs have a legitimate claim that this court should hear and determine on merit.

4. The Plaintiffs’ advocate finally deponed that a mistake of a counsel should not be meted on the client; that the Plaintiffs are ready and keen to prosecute the matter and that no prejudice will be suffered by the Defendants if the Application is allowed. The Defendant did not oppose the Application.

5. The record shows that when this matter came up for hearing on 7th May, 2018, the Plaintiffs’ advocate informed the court that the hearing could not take off because they had not served on the Defendants with a hearing notice.  The court allowed the Application for adjournment and fixed the matter for hearing on 27th September, 2018.

6. When the matter came up for hearing on 27th September, 2018, neither the Plaintiffs’ nor the Defendants’ advocate was in court.  The court dismissed the suit suo moto for want of prosecution.

7. According to the Plaintiffs’ advocate, the advocate who held his brief on 7th May, 2018 informed him that the matter had been fixed for hearing on 26th September, 2018, which is the date that he diarized. Indeed, counsel has annexed a copy of his diary which shows that he diarized the hearing of this matter on 26th September, 2018.

8. The Plaintiffs’ counsel has also annexed a copy of the hearing notice dated 7th May, 2018, that he served on the Defendants’ advocate on the same day.  The said hearing notice shows that the matter was to be heard on 26th September, 2018.

9. To the extent that the Plaintiffs’ advocate was under the inadvertent impression that the suit was to be heard on 26th September, 2018 and not 27th September, 2018, I shall exercise my discretion in his favour.

10. For those reasons, I allow the Application dated 25th October, 2018 as prayed.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 19TH DAY OF JULY, 2019.

O.A. ANGOTE

JUDGE