Dishon Muthama Nzina, Joseph Njoroge Waweru, Samuel M. Munguti, Veronicah Wangari Karanja, Philip Makau Mulwa, Samuel Kimani Ndubu, Phelis Ndunge Kituungo, Mbatha Muema, Lucy Waithera Kinyeni, Mutuku Kikonde, Grace Mboka, Ng’ang’a Mutahi, John Muchina Ngugi, Mary Wanjiru Wakaba, Beth Wanjiku Wakaba, Samuel Kamau Chomba, Mary Ndunge, Litha Mwelu Kahiliro, Mukii Mutuku, Hannah Waithera, Simon Mwangi Gatere, Joseph Muska Matha, Simon Ndungu, Wilson Kathini Kabuti, Teresia Njeri Ndung’u, Milicah Muthoni Ndung’u & Joseph Njuguna v Attorney General, Registrar of Titles, Chief Land Registrar, National Land Commission & Chief Registrar of Companies; Francis Ngigi, Daniel Mwaura & Jacob Mutua (Interested Party) [2018] KEELC 557 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MURANG’A

PETITION NO 4 OF 2017

IN THE MATTER OF : ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS IN ARTICLES 2,10,19,20,21,22,23,27,35,40(1), 47 OF THE CONSTITUTION  OF THE REPUBLIC OF KENYA.

AND

IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLES 67

AND

IN THE MATTER OF: THE NATIONAL LAND COMMISSION ACT

AND

IN THE MATTER OF: MATHENGETA FARMERS COMPANY LIMITED

AND

IN THE MATTER OF: THE PETITION OF DISHON MUTHAMA NZINA & 26 OTHERS

BETWEEN

DISHON MUTHAMA NZINA                                         1STPETITIONER

JOSEPH NJOROGE WAWERU                                    2ND PETITIONER

SAMUEL M. MUNGUTI                                                 3RD PETITIONER

VERONICAH WANGARI KARANJA                          4TH PETITIONER

PHILIP MAKAU MULWA                                             5TH PETITIONER

SAMUEL KIMANI NDUBU                                          6TH PETITIONER

PHELIS NDUNGE KITUUNGO                                   7TH PETITIONER

MBATHA MUEMA                                                         8TH PETITIONER

LUCY WAITHERA KINYENI                                        9TH PETITIONER

MUTUKU KIKONDE                                                    10TH PETITIONER

GRACE MBOKA                                                             11TH PETITIONER

NG’ANG’A MUTAHI                                                      12TH PETITIONER

JOHN MUCHINA NGUGI                                              13TH PETITIONER

MARY WANJIRU WAKABA                                          14TH PETITIONER

BETH WANJIKU WAKABA                                           15TH PETITIONER

SAMUEL KAMAU CHOMBA                                        16TH PETITIONER

MARY NDUNGE                                                               17TH PETITIONER

LITHA MWELU KAHILIRO                                          18TH PETITIONER

MUKII MUTUKU                                                             19TH PETITIONER

HANNAH WAITHERA                                                    20TH PETITIONER

SIMON MWANGI GATERE                                           21ST PETITIONER

JOSEPH MUSKA MATHA                                             22ND PETITIONER

SIMON NDUNGU                                                            23RD PETITIONER

WILSON KATHINI KABUTI                                        24TH PETITIONER

TERESIA NJERI NDUNG’U                                          25TH PETITIONER

MILICAH MUTHONI NDUNG’U                                 26TH PETITIONER

JOSEPH NJUGUNA                                                        27TH PETITIONER

VS

THE HONOURABLE ATTORNEY GENERAL          1ST RESPONDENT

REGISTRAR OF TITLES                                              2ND RESPONDENT

THE CHIEF LAND REGISTRAR                                 3RD RESPONDENT

NATIONAL LAND COMMISSION                              4TH RESPONDENT

THE CHIEF REGISTRAR OF COMPANIES             5TH RESPONDENT

AND

FRANCIS NGIGI                                                 1ST INTERESTED PARTY

DANIEL MWAURA                                            2NDINTERESTED PARTY

JACOB MUTUA                                                   3RDINTERESTED PARTY

RULING

1. On the 11/10/18 this matter was placed before the Judge for the hearing of the application dated 30/7/18. All the parties and their Counsels were absent. The date had been mutually taken by consent on 20/9/18. The Court dismissed the application for non-attendance/want of prosecution.

2. On 1/11/18 the Petitioners filed a Notice of Motion seeking the reinstatement of the application of 30/7/18 and the setting aside of the dismissal orders issued by this court on 20/9/18. The application is supported by the grounds attached thereto and the Supporting Affidavit of Elizabeth Were Advocate for the Petitioners sworn on 1/11/18. In it she deponed that she arrived late to Court due to a traffic snarl up at Murang’a which was occasioned by high traffic which included presidential motorcades which was attending the burial of a prominent musician namely John Kamaru. She urged the Court to allow the application and take into consideration the fact that the Petitioners have been ready to prosecute the petition and the prayer requesting the list of members from the Registrar General of Companies was vital to its case.

3. On 21/11/18 Mr. Wetaba for the Petitioners argued the application orally and relied on the aforementioned supporting affidavit sworn by Learned Counsel Elizabeth Were. He prayed that the mistake of Counsel should not be visited on the clients.

4. The application is not opposed by the Respondents. They were duly served as stated in the affidavit of service dated 19/11/18.

5. I have considered the application in totality and hereby allow it on the following grounds;

a. The overriding objective of the Court is to do substantive justice to litigants. See Article 159(2) (d).

b. The application was filed without delay i.e. 10 days after dismissal.

c. The reasons given by Counsel are plausible. I have no reason to doubt Counsel for the Petitioners and I am satisfied that her arrival to Court late was not intentional nor intended to subvert or delay the course of justice.

d. The application is unopposed.

6. I therefore direct that the application dated 30/7/2018 be listed for hearing within the next 10 days in default it shall dismissed.

7. I make no orders as to the costs.

DELIVERED, DATED AND SIGNED AT MURANG’A THIS 22ND NOVEMBER 2018

J G KEMEI

JUDGE

Ruling read in open Court in the presence of;

Nganga HB for Ms. Were for Petitioners/Applicants (1st – 20th)

1st – 5th Respondents – All Absent

Ms.Irene and Ms Njeri, Court Assistants