Ezekiel Kipkoech Rono v John Kipgetich Koech [2018] KEELC 1213 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAROK

ELC CAUSE NO. 19 OF 2017

EZEKIEL KIPKOECH RONO................................PLAINTIFF

VERSUS

JOHN KIPGETICH KOECH...............................DEFENDANT

RULING

The Application before me is the Plaintiff’s/Applicant’s Notice of Motion dated 28th September, 2018 which is brought under order 12 Rule 7 of the Civil Procedure Rules seeking for the setting aside of the order dismissing the suit and for the reinstatement of the same.

The Application was supported by the Affidavit of one Reuben Cheruiyot Yegon who deponed on the grounds that the suit herein was dismissed because neither the parties nor their advocates were present in court on 18th September, 2017 when the suit came up for hearing and that the Applicant was not served after the suit herein was transferred from Nakuru to Narok and lastly that the suit herein was stayed to await the determination of a Judicial Review Application No. 6 of 2012 at Nakuru and lastly the dismissal of the suit shall be prejudicial to the Applicant.

The Application was opposed by the Respondent by way of a Replying Affidavit and he contends that the Applicant was served with a Notice To Show Cause why the suit should not be dismissed and when they failed to attend court the suit was thus dismissed.

I have read the Application before me and without looking at any other matter I find that the suit herein was stayed on 20th September, 2013 by Hon. Lady Justice L.N. Waithaka pending the hearing and determination of Judicial Review No. 6 of 2012.

I have not seen evidence the aforesaid Judicial Review Application was concluded to have this suit heard or any order varying or setting aside L.N. Waithaka J order of 20th September, 2013 and in view of the above, and in the interest of justice I will allow the Application dated 28th September, 2017 and I consequently set aside my order of 18th September, 2017 and other consequential orders I made thereafter and the suit here is accordingly reinstated.  Each party shall bear its costs.

DATED, SIGNED and DELIVERED in open court atNAROKon this18thday of October, 2018

Mohammed Noor Kullow

Judge

18/10/18

In the presence of:-

Ms Nchoe holding brief for Koceyo for the Defendant/Respondent

N/A for the Plaintiff/Applicant

CA:Chuma