John Elias Kirimi v Martin Maina Nderitu, City Council of Nairobi, Margaret Wanjiru Ngarachu, Commissioner of Lands & Attorney General [2019] KEELC 2380 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC SUIT NO. 320 OF 2011

JOHN ELIAS KIRIMI...........................................PLAINTIFF

VERSUS

MARTIN MAINA NDERITU........................1ST DEFENDANT

CITY COUNCIL OF NAIROBI...................2ND DEFENDANT

MARGARET WANJIRU NGARACHU......3RD DEFENDANT

COMMISSIONER OF LANDS....................4TH DEFENDANT

THE ATTORNEY GENERAL.....................5TH DEFENDANT

RULING

On 27th June, 2017, this suit was fixed for hearing on 25th January, 2018 in the presence of the advocate for the plaintiff and the advocates for the 2nd and 3rd defendants.  When the matter came up for hearing on 25th January, 2018, only the advocates for the 1st and 3rd defendants turned up in court. The advocates for the plaintiff and the advocates for 2nd, 4th and 5th defendants did not attend court for the hearing.  The plaintiff and, the 2nd, 4th and 5th defendants’ witnesses were also not in attendance. On application by the advocates for the 1st and 3rd defendants, the suit was dismissed for non- attendance.

What is now before the court is the plaintiff’s application dated 12th March, 2018 seeking the setting aside of the said orders that were made on 25th January, 2018 and the reinstatement of the suit for hearing on merit.  The application was brought on the grounds that the plaintiff’s advocate was not aware that the suit was coming up for hearing on 25th January, 2018 although the date was taken in court in his presence. The plaintiff contended that when the date was taken, his advocate did not have a diary for 2018 and as such he did not enter the date in the diary. The plaintiff contended further that he had an arguable case with good chances of success and that it would serve the interest of justice if the suit was reinstated for hearing on merit. The plaintiff contended that he stood to suffer irreparable loss if the suit was not reinstated.

The application was opposed by the 3rd defendant through grounds of opposition and replying affidavit of Grace Gacambi Ngarachu, the attorney of the 3rd defendant both dated 11th September, 2018.  The 3rd defendant contended that no good reason had been given to warrant the exercise of this courts discretion in favour of the plaintiff and that the plaintiff’s advocate’s negligence that led to the dismissal of the suit was inexcusable.  The 3rd defendant contended that after the dismissal of the suit she invested further in the suit property and as such she stood to suffer huge financial losses if the suit was reinstated. The 1st, 2nd, 4th and 5th defendants did not oppose the application.

The application was heard on 29th January, 2019 when Mr. Kamunde appeared for the plaintiff, Mr. Munga for the 2nd defendant and Mrs. Kuria for the 3rd defendant.  I have considered the plaintiff’s application together with the two affidavits filed in support thereof.  I have also considered the 3rd defendant’s grounds of opposition and replying affidavit filed in opposition to the application.  The power to reinstate a suit dismissed for non-attendance is discretionary.  I have considered the reasons given by the plaintiff and his advocate for their failure to attend court on 25th January, 2018 when this matter was fixed for hearing.

I am in agreement with the 3rd defendant that failure on the part of the plaintiff to attend court on 25th January, 2018 was as a result of the negligence of the plaintiff’s advocate.  The question that I need to answer is whether I should punish the plaintiff for his advocate’s negligence. In some cases, I would say that let the loss lie where it falls.  In other words, a party suffering loss as a result of the negligence of his advocate should look to the advocate for recompense and should not be allowed to inconvenience other litigants and the court with applications like the one before me.  In this case however, I am of the view that justice would not be done if the plaintiff is asked to look for a remedy from his advocate.  I have considered the plaintiff’s claim and I am in agreement that the same is arguable.  I have also considered the general conduct of the plaintiff in these proceedings and I have noted that the plaintiff has never attempted to delay the hearing of the suit by seeking adjournment or otherwise.  Due to the nature of the subject matter of the dispute, the plaintiff may not recover adequate compensation from his advocates on record.

The 3rd defendant had contended that she would be exposed to possible loss if the suit is reinstated for hearing on merit.  The 3rd defendant did not place before the court evidence of further expenses that she incurred after the dismissal of the suit.  I am not satisfied that the 3rd defendant who has opposed the application would suffer loss which cannot be compensated in costs if the application is allowed.

Due to the foregoing, I find merit in the Notice of Motion application dated 12th March, 2018.  The application is allowed to the extent that the order made on 25th January, 2018 dismissing this suit is set aside and the suit is reinstated for hearing on merit.  The plaintiff shall pay to the 3rd defendant thrown away costs assessed at Kshs.15,000/= forthwith.

Delivered and Dated at Nairobi this   18th day of July, 2019

S. OKONG’O

JUDGE

Ruling read in open court in the presence of:

Mr. Kamunde for the Plaintiff

Mr. Dar h/b for Prof. Ojienda for the 2nd Defendant

Mrs. Kuria for the 3rd Defendant

C. Nyokabi - Court Assistant