Eunice Mutitu Gichobi, Jesinta Wanjiku Gichobi, Julius Kariuki Gichobi, Lucy Muthoni Gichobi, Stephen Ngumu Weru, John Ngure Gichobi & Stephen Gitari Gichobi v Joseph Gichobi Ngure & Catherine Wambui Gichobi [2017] KEELC 677 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA

ELC CASE NO. 23 OF 2016

EUNICE MUTITU GICHOBI........................1ST PLAINTIFF

JESINTA WANJIKU GICHOBI..................2ND PLAINTIFF

JULIUS KARIUKI GICHOBI......................3RD PLAINTIFF

LUCY MUTHONI GICHOBI........................4TH PLAINTIFF

CATHERINE WAMBUI GICHOBI...............5TH PLAINTIFF

JOHN NGURE GICHOBI.............................6TH PLAINTIFF

STEPHEN GITARI GICHOBI.......................7TH PLAINTIFF

VERSUS

JOSEPH GICHOBI NGURE...................1ST DEFENDANT

STEPHEN NGUMU WERU....................2ND DEFENDANT

RULING

On 25th February 2016, the Court granted the plaintiffs interim orders in terms of prayers 1, 2 and 3 of the Notice of Motion dated 22nd February 2016.  The application was then fixed for hearing inter-parte on 15th March 2016.

On 15th March 2016, counsel for the plaintiffs MR. MWAI did not attend Court and the application was adjourned to 21st April 2016 when MR. MWAI informed the Court that he was of the view that the parties should just prepare the main suit for hearing.  The Court granted the parties upto 24th August 2016 to agree on the way forward but nothing appears to have happened on that day.

I now have an application by the 2nd defendant dated 8th June 2017 seeking the following orders:

1. That the Honourable Court be pleased to declare the temporary injunction granted on 25th February 2016 as having lapsed by operation of the law as no steps have been taken for over twelve months.

2. That the Honourable Court be pleased to dismiss the suit for want of prosecution.

3. That costs of the application be provided for.

The application is premised on the grounds set out therein and is also supported by the affidavit of STEPHEN NGUMU WERU the 2nd defendant herein.

The gravamen of the application is that since 25th February 2016 when this Court granted the plaintiffs an order of temporary injunction, no action has been taken to expedite this case and the said order of temporary injunction has infact lapsed.  The 2nd defendant has deponed further that the land subject of this suit i.e. BARAGWE/GUAMA/879 was the subject of CIVIL CASE No. 336 of 2013 involving him and the 1st defendant and he has a decree issued in his favour upon admission by the 1st defendant.

The record shows that MR. MWAI was served with the application and a hearing notice on 20th July 2017 showing that the application was listed for hearing on 18th September 2017.

On 18th September 2017, the Court did not sit and the 2nd defendant took another date for hearing of the application which was on 30th October 2017.  However, there is no evidence that counsel for the 2nd defendant served counsel for the plaintiffs with the said application.  In the circumstances, and notwithstanding the fact that no reply has been filed in response to the said application, it would be unfair to allow it in the absence of the plaintiffs who needed to be served with the same.

I therefore decline to allow the application and direct that it be served for hearing on 9th November 2017.

It is so ordered.

B.N. OLAO

JUDGE

3RD NOVEMBER, 2017

Ruling dated, delivered and signed in open Court this 3rd day of November 2017 at Kerugoya

2nd Defendant present

No appearances by other parties.

B.N. OLAO

JUDGE

3RD NOVEMBER, 2017