Isaac Mwaura v Peter Karuga, Wanjiru Mbecha & Peninah Njoki [2018] KEELC 2185 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND  COUR

AT NAIROBI

ELC SUIT NO. 941 OF 2012

ISAAC MWAURA................................................PLAINTIFF

VERSUS

PETER KARUGA.......................................1STDEFENDANT

WANJIRU MBECHA................................2ND DEFENDANT

PENINAH NJOKI......................................3RD DEFENDANT

RULING

I have considered the 3rd defendant’s Notice Motion application dated 18th September, 2017 together with the supporting affidavit.  I have also considered the replying affidavit sworn by the plaintiff on 20th November, 2017 in opposition to the application.  Finally, I have considered the submissions that were made before me by the advocates for both parties on 23rd November, 2017.  The orders sought by the 3rd defendant/applicant are discretionary. The discretionary power of the court has to be exercised judiciously and not capriciously or whimsically.

Having considered the nature of the dispute between the parties as brought out in the plaint, the applicant’s defence and counter-claim, the bundle of documents and witness statements and the circumstances under which the suit and the applicant’s defence and counter-claim were dismissed, I am inclined to exercise my discretion in favour of granting the orders sought by the applicant.I have noted from the record that the applicant’s advocates have been actively following this case from the time they entered appearance and filed a defence and counter-claim. I have noted further that the said advocates were present on 27th April, 2017 when the matter was fixed for hearing and appeared in court on 24th May, 2017 when the matter was dismissed. This shows that the applicant has always been interested in defending the plaintiff’s claim against her and also prosecuting her counter-claim. I am surprised that the plaintiff whose case was also dismissed is opposing the reinstatement of the applicant’s defence and counter-claim. Having reviewed the pleadings, I am satisfied that the applicant’s counter-claim is not frivolous. The applicant should therefore be given an opportunity to pursue the same.  The plaintiff has not convinced me that he will suffer any prejudice if the orders sought are granted.  The failure by the applicant to attend court on 24th May, 2017 has been explained and is excusable.

Due to the foregoing, I will allow the Notice of Motion dated 18th September, 2017 which I hereby do in terms of prayers 1and 2 thereof.  The costs of the application shall be in the cause.

Delivered and Dated at Nairobi this   26th day of July 2018

S. OKONG’O

JUDGE

Ruling read in open court before:

...........................................for the Plaintiff

...................................for the 1stDefendant

.................................for the 2nd Defendant

.................................for the 3rd Defendant

..........................................Court Assistant