H. W. Njoroge v William Njoroge Mbote [2021] KEELC 4477 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC  CASE  NO. 52 OF 2015

GENERAL H. W. NJOROGE....................................PLAINTIFF/APPLICANT

=VERSUS=

WILLIAM NJOROGE MBOTE.........................DEFENDANT/RESPONDENT

RULING

1. This is the notice of motion dated 16th December 2019 brought under section 3 and 3A of the Civil Procedure Act Cap 21 of the Laws of Kenya, order 51 rule 15 and any other enabling provisions of the law.

2. It seeks orders:-

(i)  Spent.

(ii)  That this honourable court be pleased to set aside the order of 9th December, 2019 dismissing the plaintiff suit for want of prosecution.

(iii)  That this honourable court be pleased to reinstate the plaintiff’s suit.

(iv) That costs be in the cause.

3. The grounds are on the face of the application and are set out in paragraphs (a) to (i).

4. The application is supported by the affidavit of Kenneth Wilson, Advocate of the plaintiff/applicant sworn on the 16th December 2019.

5. The application is opposed.  There is a replying affidavit sworn by Mwaniki Njuguna, Advocate of the defendant sworn on the 27th December 2020.

6. The application was canvassed by way of oral submissions.

7. I have considered the notice of motion, the affidavit in support and the annexures.  I have also considered the replying affidavit, the annexures and the oral submissions by counsel. The issue for determination is whether this application is merited.

8. I have considered the reasons given by Mr. Kenneth Wilson Advocate, in his supporting affidavit.  I am not convinced that they are plausible.

9. The court record is very clear.  This is the second time the plaintiff is seeking to reinstate the suit after it was dismissed for want of prosecution.  I find that the plaintiff is not desirous of prosecuting this case.

10. I am not satisfied by the reasons given by Mr. Kenneth Wilson Advocate.  I find no merit in this application and the same is dismissed.  I make no orders as to costs.

It is so ordered.

Dated, signed and delivered in Nairobi on this 28th  day of January 2021.

.................................

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Kenneth Wilson for Plaintiff

Mr. Mwaniki Njuguna for Defendant

Phyllis - Court Assistant