Francis Esusa Mukaisi v Patricia Wambui Koigi, Rose Wanja Koigi, Lucy Njambi Muraya & Nahashon Khwatenge [2021] KEELC 2955 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 10 OF 2009

FRANCIS ESUSA MUKAISI...................................PLAINTIFF

VERSUS

PATRICIA WAMBUI KOIGI.............................1ST DEFENDANT

ROSE WANJA KOIGI.......................................2ND DEFENDANT

LUCY NJAMBI MURAYA…............................3RD DEFENDANT

NAHASHON KHWATENGE.............................4TH DEFENDANT

RULING

1. This is a ruling on the application dated 3/3/2021 and filed on 12/3/2021. The application has been brought under Sections 1A, 1B, 3A & 80of theCivil Procedure Act, Cap 21, Order 12 Rule 7andOrder 45 Rules 1, 2 & 3of theCivil Procedure Rules. The plaintiff seeks that the orders made on 9/2/2021 dismissing the suit herein for want of prosecution together with all other consequential orders be reviewed varied and/or set aside and that the plaintiff’s suit be reinstated and be set down for further hearing. He also asks for costs be provided for.

2. The application is supported by the affidavit of Mr. Aggrey O. Karani, counsel for the plaintiff sworn on 3/3/2021. The grounds on which the said application is made are that on 4/11/2020 the applicant’s advocate was served with a mention notice fixing the matter for a mention on 9/2/2021; that the said advocate attended court at 2:00 p.m. only to find that the matter was not listed; that upon inquiry he learnt that the matter had come up in the morning of that day and had been dismissed; that the matter was dismissed solely on the basis of an error on the face of the record and that the applicant is prepared to prosecute the matter if reinstated.

3. The defendants did not file any response in opposition to the application.

Determination

4. I have considered the application. The record shows that the matter was scheduled for a mention on the 9/2/2021 and not for hearing. It is not clear from the record how the mention notice dated 21/10/2020 scheduling the matter for an ordinary mention on 9/2/2021 came to be issued because this court’s directions made on 4/3/2020 were that the matter be brought up for hearing on 31/3/2020. There is no record of what transpired on 31/3/2020.

5. This court presumes that this matter was meant to be listed for the plaintiff to show cause as to why the suit should not be dismissed for want of prosecution alongside other inactive files. However the notice that was issued did not communicate the fact that the plaintiff was supposed to appear by himself or by advocate to show cause why the suit should not be dismissed for want of prosecution on 9/2/2021, being a date on which one year would have lapsed since the last step taken by any of the parties in the matter.

6. Be that as it may it is clear that the notice never conveyed the right message to the applicant and he can not be assumed to have known that his suit was in peril of being dismissed for want of prosecution on 9/2/2021. Also, going by the notice, the matter came up for an ordinary mention and not a hearing. No matter may be dismissed for want of prosecution upon an ordinary mention and therefore the dismissal order made on 9/2/2021 was erroneous and the plaintiff should not be denied a hearing of the suit on the merits on account of such an order.

7. For the foregoing reasons, I find that the application dated 3/3/2021 has merit and the same is hereby granted in terms of prayer Nos. (a)and(b). The costs of the application shall be in the cause.

8. To expedite the conclusion of this suit, the further hearing of this matter shall be on 29/6/2021. The directions of 4/3/2021 are hereby renewed with the timelines running from the date of this order. The County Surveyor Bungoma shall therefore testify in court on 29/6/2021. The applicant shall comply with the directions dated 4/3/2020 by filing an affidavit of service of the order and witness summons on the County Surveyor Bungoma within 7 days hereof.

Dated, signed and delivered at Kitale via electronic mail on this 14th day of June, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.