Geoffrey Kithome Ngewa (suing on his own behalf and on behalf of the Estate of Joseph Ngewa Kitole – Deceased v Geoffrey Mwangangi Muteti,Jonathan Peter Kilonzo,Katuku Ngite,Francis Mutisya Sila,Paul Wambua Kyengo,Harrison Mutua Nzioka,Joelmalelu Kioko,Mulilu Kimontho,Kyenze Muia,David Kivieko Muteti & Land Registrar Makueni County [2018] KEELC 820 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT  AND  LAND COURT AT  MAKUENI

ELC CASE NO. 88 OF 2017

GEOFFREY KITHOME  NGEWA (suing on his

own behalf  and on behalf  of the  Estate of

JOSEPH NGEWA KITOLE –Deceased.....................PLAINTIFF/APPLICANT

VERSUS

GEOFFREY MWANGANGI MUTETI.......1ST DEFENDANT/RESPONDENT

JONATHAN PETER  KILONZO...............2ND  DEFENDANT/RESPONDENT

KATUKU NGITE..........................................3RD DEFENDANT/RESPONDENT

FRANCIS  MUTISYA  SILA........................4TH DEFENDANT/RESPONDENT

PAUL  WAMBUA  KYENGO.......................5TH DEFENDANT/RESPONDENT

HARRISON  MUTUA  NZIOKA.................6TH DEFENDANT/RESPONDENT

JOELMALELU  KIOKO..............................7TH DEFENDANT/RESPONDENT

MULILU KIMONTHO ----------------------- 8TH DEFENDANT/RESPONDENT

KYENZE MUIA.............................................9TH DEFENDANT/RESPONDENT

DAVID KIVIEKO MUTETI.......................10TH DEFENDANT/RESPONDENT

THE LAND REGISTRAR

MAKUENI COUNTY................................11TH   DEFENDANT/RESPONDENT

RULING

1) There  is  before  me a notice of motion application  expressed  to be brought  under sections 1A , 1B  and  3A of the   Civil  Procedure Rules  (Cap 21 Laws of Kenya)  Order  12 Rule 7  and Order 51 of the Civil Procedure   Rules for orders:-

1. This court’s orders dismissing   the Plaintiff’s suit on 12/4/2018 be reviewed and/or set aside and the suit be reinstated.

2. Costs of and incidental to this application be provided for.

2) The application is dated 10th May, 2018 and was filed in court on even date. It is predicated on the grounds on its face and is supported by the replying affidavit of Morris M. Mulei, the counsel for the Plaintiff/Applicant, sworn at Makueni on the 10th day of May, 2018 contemporaneously with the application.

3) The Applicant  filed a further affidavit  on 20th  July, 2018  the same was   sworn at Machakos  on 10th July, 2018 by Rhoda  M. Kyalo, the counsel  who held  brief for Mr. Morris M. Mulei.

4) The  application is opposed  by the first (1st)  to tenth (10th)  Respondents  vide the replying  affidavit of Maurine  Muli Nzavi, their counsel  herein, the same having  been  sworn on 5th June, 2018 and was filed in court. On the 11th June, 2018.

5) On the 11th June, 2018 the court directed that the application be disposed off by way of written submissions. At the time of writing   this ruling only the Applicant’s counsel had filed his submissions.

6) One of the grounds that the application is predicated on  is that the counsel  who had the conduct of this matter  on the  12th April, 2018 when the  suit was dismissed was held up in Machakos  Court  in Machakos  High Court  Misc No. 131/2016, High Court 406/2017 and ELC no. 4/2018. That there was a counsel who held his brief when the suit was dismissed.

7) In the supporting affidavit, there is annexed  an affidavit  the Plaintiff/Applicant  who has  deposed  that he was present in court with his two  witnesses ready to proceed  with the hearing on the  day that the suit was  dismissed.

8) Mr. Nzavi has  deposed  in paragraph 6 of his replying  affidavit  that the  counsel  who held  brief  for Mr. Mulei deliberately refused to get into the court room  when the matter  was called out.  He goes on to depose that the Applicant and his witnesses did not go into the court room either.

9) The Applicant’s counsel  in his submission  cited the case of Ivita V Kyumbu (1984) KLR 441 which set out the guiding  principles on whether or not a suit should be reinstated  for trial. In the aforementioned case, the court held  that:-

“The test is whether the delay is prolonged and inexcusable and if it is, can justice be done despite such delay. Justice is justice to both Plaintiff and the Defendant, so both parties to the suit must be considered and the position of the judge too”

10) The counsel further cited Order 12 Rule 7 of the Civil Procedure Rules which gives the court the discretion to set aside the order dismissing the suit upon an application for reinstatement.

11) Having  read the application together with the supporting  and the further  affidavits as well as the replying affidavit, it  is clear that the counsel on record for   the Applicant   as well  as the counsel  who held  brief  for him are entirely to blame  for the  dismissal of  the suit. There is no reason why Ms Kyalo who held brief for Mr. Morris M. Mulei could not have gone into the court room when the matter was called out at about 12. 00 o’clock. The counsel could have advised the Applicant to enter into the court room instead of staying outside as he did on the material day.

12) The above being the case, it would be unjust to punish the Applicant who was all along within the court premises for the mistake of his counsel. In the circumstances, I hold that the application has merits and I will allow it subject to the Applicant paying thrown away costs to the Respondent. The thrown away costs are assessed at Kshs. 20,000/=.

Signed, Dated and Delivered at Makueni on this 29th day of October, 2018.

MBOGO C.G,

JUDGE

IN THE PRESENCE OF;

Ms. Kyalo for the Plaintiff

Mr. Nzavi for the Defendant

Mr. Kwemboi Court Assistant

MBOGO C.G, JUDGE,

29/10/2018