Gilbert Kathenya Mukungi v Mwiandi Kaimbiru & Evangeline Kanyua Mwiandi [2017] KEHC 2997 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC CASE NO 89 OF 2017

FORMERLY MERU ELC CASE NO.410 OF 1991

GILBERT KATHENYA MUKUNGI.............................................PLAINTIFF

VERSUS

MWIANDI KAIMBIRU............................................................DEFENDANT

EVANGELINE KANYUA MWIANDI........................INTERESTED PARTY

RULING

1. This application is dated 5th July, 2017 and seeks orders:

1. THAT this Honourable Court be pleased to review its order of 4th day of April, 2017 confirming the dismissal of the suit and finding the same as having abated.

2. THAT the costs of this application be provided for.

2. The application has the following grounds:

(a) THAT there is sufficient reason to review the order.

(b) THAT there is some mistake or error apparent on the face of the record.

(c) THAT the court file got missing and the fact was not considered.

3. The application is supported by the affidavit of Gilbert Kathenya Mukungi which stats as follows:

I, GILBERT KATHENYA MUKUNGI of P. O. Box 10 CHOGORIA make oath and state as follows:-

1. That I am the plaintiff herein and therefore competent to make and swear this affidavit.

2. That this case was heard up to the finish but the defendant died before its conclusion.

3. That I live on the disputed land and the defendant’s widow EVANGELINE KANYUA MWIANDI who occupies other portion has been frustrating me by refusing to apply for letters of administration.

4. That she has also sold some portions of the land to strangers could be effected. (sic)

5. That this compelled me to go to CHUKA to have her appointed as a legal representative but she resisted the move (annexed is a copy of the proceedings from Chuka PM’S Court marked GKM 1).

6. That I was advised to file a citation before the High Court Meru and filed Misc Succ Cause NO. 280 of 2014 (Annexed are copies of the citation and supporting affidavit marked GKM 2 and GKM 3).

7. That when the said widow found that I was insisting on the matter she filed High (sic) Succession Cause No. 552 of 2014 and appointed as a legal representative (sic) (Annexed is her Petition marked GKM 4).

8. That meanwhile this file had been found and I made an application to have the widow appointed as the legal representative (Annexed is a copy of the application marked GKM 5).

9. That the application was certified urgent by this court but the court raised the issue of lack of prosecution found my case as having abated and having been dismissed.

10. That I asked my advocate to go through the proceedings and he advises me that he cannot find any dismissal of the suit.

11. That the court did look at the whole file and as a result came to the conclusion it did. (Annexed is a copy of the court’s Ruling marked GKM 6).

12. That the result is that I will lose my home and will be rendered landless.

13. That I pray the court to proceed to use its inherent powers, review the order and allow me to prosecute my case.

14. That the contents of this affidavit are true to the best of my knowledge, information and belief.

4. The application was fixed to be heard on 9. 10. 2017. The defendant’s advocate D.J. Mbaya was present when this hearing date was fixed. He asked for 14 days to respond to the application.

5. On 9. 10. 2017, the defendants and their advocate were not in court.

6. Miss Munga asked the court to allow the application. She told the court that she was solely relying on the plaintiff’s supporting affidavit sworn on 5th July, 2017.

7. Having perused the grounds on the face of the Notice of Application and the supporting affidavit sworn by the applicant on 5th July, 2017, I find that there is substantial basis for allowing the application which the defendants have not opposed.

8. In the circumstances, this application is allowed.

9. Costs shall be in the cause.

10. It is so ordered.

Written and delivered in open court at Chuka this 9th day of October, 2017 in the presence of:

CA: Ndegwa

Miss Munga for the plaintiff/applicant

P. M. NJOROGE,

JUDGE.