Florence Nafula Ayodi, Miriam Jumba Musamia, Catherine Nabwala, Mary Nasimiyu, Elizabeth Mutenyo Musamia & Jonathan Ayodi Ligure v John Tabalya Mukite & Eliud Syangu Mukite [2021] KEELC 2167 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

LAND CASE NO. 27 OF 2021

FLORENCE NAFULA AYODI…………..…......1ST PLAINTIFF

MIRIAM JUMBA MUSAMIA…………...……..2ND PLAINTIFF

CATHERINE NABWALA……………..………..3RD PLAINTIFF

MARY NASIMIYU………………………..…….4TH PLAINTIFF

ELIZABETH MUTENYO MUSAMIA….……..5TH PLAINTIFF

JONATHAN AYODI LIGURE……………..…..6TH PLAINTIFF

VERSUS

JOHN TABALYA MUKITE ……..…………..1ST DEFENDANT

ELIUD SYANGU MUKITE………………….2ND DEFENDANT

RULING

The Application

1. The background to the instant application is that the plaintiffs filed a notice of motion dated 14/4/2021 seeking an order of injunction against the defendants. On 20/4/2021 this court ordered that the defendants be served with that application and that they do file and serve their response within 7 days of service in readiness for the hearing of the application inter partes on 5/5/2021. On 5/5/2021 the defendants appeared in person and stated that they had been served the previous day. However Mr Onyancha for the plaintiffs pointed out that there was a replying affidavit on the record and this court ordered parties to file submissions within a given time frame. Interim orders were issued on the same date.  A mention was scheduled for 27/5/2021 for the issuance of a ruling date. The defendants however filed an application dated 12/5/2021 on 13/5/2021seeking a review of the orders made by this court on 5/5/2021. On 17/5/2021this court scheduled the application for hearing on 27/5/2021. On 27/5/2021 the defendants never appeared and Mr. Onyancha appeared for the plaintiffs and the application dated 12/5/2021 was dismissed for want of prosecution while the application dated 16/4/2021 was scheduled for a ruling on 22/6/2021. Those orders formed the basis of the instant application.

2. The instant Notice of Motion is dated 7/6/2021and was filed in court on8/6/2021. It is brought under Article 159 (2) of the Constitution, Section 3Aof theCivil Procedure ActandOrder 51of theCivil Procedure Rules 2010,the defendants sought the following orders:

(a) …spent

(b) …spent

(c) That the Honourable Court be pleased to  review the orders made on 27/3/2021 and  grant the applicants leave to file a further  affidavit and written submissions against  the application dated 16/4/2021.

(d) That each party to bear the costs of this  application.

3. The application is supported by the affidavit sworn on 7/6/2021by the 1st defendant on his own behalf and on behalf of the 2nd defendant. The grounds on the face of the application are that the applicants were in person and did not have any legal know how to handle the matter; that the time within which to file the submissions lapsed before they could do so; that the applicants have since hired an advocate who has filed the instant application; that the respondents would not suffer any prejudice if the orders sought were granted.

The Response

4. The 1st defendant filed a replying affidavit sworn on 11/6/2021 her own behalf and on behalf of the other co-plaintiffs. The plaintiffs reiterate the history of the matter and further state that there is no explanation as to why the defendants failed to attend court on 27/5/2021 or file submissions as ordered; that the instant application introduces extraneous issues not contained in the defence; that it will be prejudicial to the plaintiffs to have new affidavits introduced while they have already filed their submissions; that the applicants are not seeking review of the dismissal orders of 27/5/2021 or reinstatement of their review application; that the defendants instead seek leave to file submissions on the application dated 16/4/2021 and that the defendants’ application lacks merit.

Submissions

5. On 8/6/2021 the court directed the application be disposed of by way of written submissions which both parties filed.

Determination

6. I have perused the application, the supporting affidavit, the replying affidavit and the submissions filed. The ruling date of 22/6/2021 having passed, the main issue that remains for determination in the instant application is whether this court should review the orders it made on 27/5/2021and grant the defendants leave to file a further affidavit and submissions against the application dated 16/4/2021.

7. I have considered the ground that the defendants were previously acting in person and had no know how to deal effectively with the matter a weighty ground. I have also considered the fact that they are entitled to effective legal representation and that they have now hired an advocate to handle this litigation on their behalf. The purpose of hiring an advocate is to obtain proper legal advice and it would defeat that very purpose if this court denied the applicants the orders that they seek in the instant application. This court is of the view that the other issues of substance raised in protest by the plaintiffs in reply to the instant application are quite misplaced in the instant application that deals with procedural issues and they can be raised during the hearing of the application dated 16/4/2021.

8. Consequently I find that the defendants’ application dated 7/6/2021 has merit and the same is hereby allowed as prayed in prayer no (c) thereof. The defendants shall file their intended further affidavit within 7 days of this order in default of which the leave granted herein shall automatically lapse. However, if the further affidavit is filed and served as ordered, the plaintiffs shall have leave to file a supplementary affidavit within 7 days of service. Thereafter the defendants shall file their submissions within 3 days of service of the plaintiff’s supplementary affidavit if any and the plaintiffs shall have leave to reply to those submissions within 3 days of service.

9. The application shall be mentioned on 29/9/2021 for directions by the court.

It is so ordered.

Dated, signedanddeliveredatKitale via electronic mail on this 6thday of August, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.