Ithau & 3 others v Nandlal and Company Limited & 4 others; Action Tam of South C Ward Association & another (Interested Parties) [2024] KEELC 13599 (KLR)

Ithau & 3 others v Nandlal and Company Limited & 4 others; Action Tam of South C Ward Association & another (Interested Parties) (Environment & Land Case 147 of 2017) [2024] KEELC 13599 (KLR) (3 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13599 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 147 of 2017

LN Mbugua, J

December 3, 2024

Between

Phoebe Mueni Ithau

1st Plaintiff

Nara Holdings Ltd

2nd Plaintiff

Molly Kiragu (Suing as the administrator of the Estate of Samuel Karagu Muchiki)

3rd Plaintiff

Mwangi Stephen Mureithi

4th Plaintiff

and

Nandlal And Company Limited

1st Defendant

Nairobi City County

2nd Defendant

National Land Commission

3rd Defendant

The Hon Attorney General

4th Defendant

Chief Land Registrar

5th Defendant

and

Action Tam of South C Ward Association

Interested Party

Kenya Revenue Authority

Interested Party

Ruling

1. Before me is the 2nd and 4th Plaintiff’s Notice of Motion Application dated 8. 12. 2023 seeking orders for the reinstatement of the suit which was dismissed on 16. 11. 2023 for want of prosecution. The application is premised on the grounds on the face of the application and the supporting affidavit of Muyuka Mercy, the advocate applicants. She contends that when the matter came up for hearing on 16. 11. 2023, she indicated that she was not ready to proceed with the hearing as there was a pending application by the 1st plaintiff dated 23. 10. 2023 for substitution of the 1st plaintiff who was deceased. She contends that they are keen on prosecuting this matter.

2. In opposition thereof, the 1st defendant filed a Replying Affidavit dated 7. 5.2024 sworn by its director, one Vinay Sanghrajka where he avers that the advocates for the applicants had appeared before the court on 9. 10. 2023 when they withdrew their application to cease acting averring that they were in touch with their clients. Thus the advocate for the applicants had sufficient time to appraise their clients regarding the hearing date of 16. 11. 2023. It is further argued that the application is frivolous and vexatious and should therefore be dismissed.

3. I have considered all the arguments raised herein. The overriding objective of our constitutional and statutory framework on civil procedure is to achieve substantive justice to the litigants, See Gold Lida Limited vs NIC Bank Ltd & 2 other [2018] eKLR. In the case of Mwangi S. Kimenyi vs Attorney General and Another [2014] eKLR the court stated that;“The decision whether a suit should be re-instated for trial is a matter of justice and it depends on the facts of the case.”

4. Considering that one of the plaintiffs (the first one) was deceased, and there was a pending application for his substitution as at the time the suit was dismissed, then I find that the applicants have proffered sufficient cause to warrant a review of the orders of 16. 11. 2023 for their case to be reinstated. Thus the application dated 8. 12. 2023 is hereby allowed but with costs to the 1st defendant.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3th DAY OF DECEMBER 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Muyuka for PlaintiffVanessa holding brief for Elijah for 1st DefendantCourt Assistant: Vena