James Mutugi Mwithi v Dedan Mugo Mwangi [2019] KEELC 3210 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT CHUKA

CHUKA ELC CASE NO. 01  OF 2019 (OS) (FAST TRACK)

IN THE MATTER OF LAND PARCEL NUMBER SOUTH THARAKA/TUNYA “A”/390

AND

IN THE MATTER OF SECTIONS 7, 37 AND 38 OF THE LIMITATION OF ACTIONS ACT AND ORDER 37 RULE 8 OF THE CIVIL PROCEDURE RULES

BETWEEN

JAMES MUTUGI MWITHI..........PLAINTIFF

VERSUS

DEDAN MUGO MWANGI......DEFENDANT

RULING

1. This application is dated 17th May, 2019 and seeks orders:

1. That this honourable court be pleased to review its orders issued on 8th April, 2019.

2. That the costs of this application be costs in the cause.

2. The application has the following grounds:

1. There is an error apparent on the face of the record in that the parties in the main suit are James Mutugi Mwithi versus Dedan Mugo Mwangi whereas in the application, the subject of the order sought to be reviewed, the parties are James Mutugi Mwithi versus Daniel Mugo Mwangi.

2. There was a mistake in naming the defendant as Daniel Mugo Mwangi instead of Dedan Mugo Mwangi.

3. There will not be any prejudice caused to the defendant because the order sought to be reviewed has not been extracted or service effected by way of advertisement in the Nation Newspapers as ordered.

4. The error or mistake was discovered when it was sought to extract the order for advertisement.

5. The application for the review has been made without unreasonable delay.

3. It is supported by the affidavit of Mr Stephen Kaai  which states:

I Stephen Kaai, of care of Post Office Box Number 73104-00200 Nairobi in the Republic of Kenya make oath and state as follows:-

1. That my name is Stephen Kaai and I am the deponent herein.

2. That I am an advocate of the High Court of Kenya having the conduct of this suit on behalf of the plaintiff.

3. That I am fully conversant with the matters in issue in this suit and therefore competent to make this affidavit in support of the application herein.

4. That the pleadings in the Originating Summons by the plaintiff name the defendant as Dedan Mugo Mwangi, but when the application for leave to serve the Originating Summons by substituted service was drawn my firm erroneously named the defendant as Daniel Mugo Mwangi.

5. That the error or mistake was detected by me when I called at the registry on 7th May, 2019 to apply for the extraction of the order given herein on 4th May, 2019.

6. That I needed the order to enable me advertise for service in the Nation Newspaper.

7. That the error or mistake in the naming of the defendant wrongly was caused by the slip of the pen.

8. That there is certainly an error on the face of the record because the Originating Summons and the interlocutory application bear different defendant.

9. That as the service on the defendant by the advertisement has not been effected no prejudice will be caused on the defendant.

10. That in the interest of justice it is fair and just that the order of 8th April, 2019 be reviewed to name Dedan where it reads Daniel.

11. That this application has been made without undue delay.

12. That I make this affidavit the facts deponed to herein being true to the best of my knowledge and belief.

4. When the application was heard on 27th May, 2019, advocate Kaai Mugambi told the court that he relied on his pleadings and asked the court to grant the prayers sought.

5. I find that the application has merit. The plaintiff is allowed to name the defendant as Dedan Mugo Mwangi.

6. It is so ordered.

Delivered in open Court at Chuka this 27th day of May, 2019 in the presence of:

CA: Ndegwa

Stephen Kaai Mugambi for the Plaintiff

P.M. NJOROGE

JUDGE