Joseph Afwande Musimbia v Bonface Omolo Ajuogi, Ochieng Odalanga & Khalaba Ochieno [2013] KEHC 998 (KLR)

REPUBLIC OF  KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

H C.C. NO. 26 OF 2010. (O.S)

(ORIGINALLY BUNGOMA HCC. NO. 117 OF 2004)

JOSEPH AFWANDE  MUSIMBIA ………………………..PLAINTFF

VERSUS

BONFACE OMOLO AJUOGI      ]

For; OCHIENG ODALANGA &   ]……………………. DEFENDANTS.

KHALABA OCHIENO                 ]

R U L I N G.

The Defendants/Applicants filed the Notice of Motion dated 2nd November, 2012 against the Plaintiff/Respondent for orders;-

That this suit be dismissed for failure to comply with the order of 28th May, 2012 and for  want of prosecution.

That the caution/inhibitions or restrictions registered on 27th January, 2005 or any other on Samia/Luchululo-Bukhulun gu/346 be lifted/removed forthwith.

That Plaintiff/Respondent meet the costs of the suit and application.

The application is supported by the undated affidavit of 1st Defendant/Applicant filed with the application on 16th November, 2012.

The application is opposed by the Plaintiff/Respondent through his replying affidavit sworn on 21st January, 2013 and another affidavit by Emmanuel Mukhebi Situma also sworn on 21st January, 2013.

The application  was on 7th August, 2013  fixed for hearing on 1st January, 2013, by the Defendant/Applicants’ counsel.  On 16th August, 2013 a hearing notice  was served  on the Plaintiff’s/Respondent’s  counsel and affidavit of service by Joseph Orata Kweyu dated 19th August, 2013 filed.   On the hearing date the Plaintiff’s/Applicant’s counsel did not attend court and the court allowed counsel for the Defendants/Applicants to  prosecute the application.

The court has carefully considered the supporting and replying affidavits and the annextures thereto.  The  court has also considered  the submissions by Defendants/Applicants  counsel and  come to the following findings;-

That  in its order of 28th May, 2012, the court  inter alia directed the  Plaintiff  to take appropriate action  to fix  the case for hearing within ninety (90) days of that date. The court further directed that;

‘’  If the plaintiff does not do so, the Defendants shall be at liberty to invoke this court’s jurisdiction on dismissal for want of prosecution.’’

By the time the application dated 2nd November, 2012 was filed on 16th November, 2012 a period of about five and a half     months had lapsed since the court order of  25th May, 2012.   Had  the plaintiff complied with the court order to fix the case for hearing in 90 days.?  The Defendants/applicants  submits they  had not and hence this application. The  Plaintiff/Respondent      have in the replying affidavit annexed  claimed they had taken     steps to visit the court registry to fix the case for hearing but    were told no dates were being given in such cases  as   instructions were that they await the appointment of   Environment and Land judges. They have annexed  copies of  the Chief Justice’s practice directions of 9th February, 2012 and      20th September, 2012  and a letter dated 13th August, 2012 to  the Deputy Registrar  asking for case to be mentioned on 12th    November, 2012 for purposes of fixing a hearing date. They   have also annexed a mention notice dated 17th September,  2012 addressed to Defendants/Applicants counsel indicating         that the matter had been fixed for mention on 12th November,        2012.

That after  perusing the court record there is no copy of the letter dated 13th August, 2012  that had been received by the court. There is also no entry in the court record of the action taken on 12th November,  2012 which  is the date the letter of 13th August, 2012  had indicated a hearing date was to be taken.  More surprising is the fact that the letter of 13th August, 2013  had not been copied  to the Defendants/Applicants counsel, yet a hearing date was to be fixed on 12th November, 2012.  It is doubtful as to whether  the letter dated 13. 8.2012, if  written at all, was  brought to the attention of the court registry.

That on 13th September, 2012 the Plaintiffs/Respondent’s advocates had the court file produced and fixed a mention notice  on 12th November, 2012. On 17th October, 2012, the mention notice was issued addressed to the Defendants’/Applicants counsel. The copy  of the notice annexed  to Mr. Situma’s affidavit and  marked EMS has a date stamp of  Defendant’s/Applicant’s  counsel indicating they received it on 16th October, 2012. The affidavit  by Mr. Situma  sworn on 21st January, 2013  at paragraph 9  indicates service of mention notice was effected on 16th October, 2013. This fact has not been disputed by the Defendants/Applicants.

That having  found as in 2 and 3 above, it follows  that the evidence available  shows  that the Plaintiff/Respondent took his first step towards fixing  the case for hearing on 13th September, 2012 when he took the mention dated of 12. 9.2013 and consequently  served  the mention notice dated 17th September, 2012 on Defendants’/Applicants’ counsel  on 16th October, 2012. The claim that a letter dated 13th August, 2012 had been written and sent to the Deputy Registrar is not  supported by the record of the court.

That there  is no material presented  before this court to show that  the registry was not fixing  hearing dates of matters relating to environment and land during  the period following  the court order of 28th May, 2013. This court is aware the Honourable Judge who issued the orders of 28th May, 2012  was in the station  up to the end of the year, 2012, and  had continued  to deal with environment and land matters until he left the station for his next assignment in accordance with the Chief Justices directions.

That  the Chief Justice directions of 9th February, 2012 and 20th September, 2012 had not  stopped the hearing  of the environment and land matters before the existing  courts. The practice direction of 9th February, 2012  especially practice  direction No. 1 provided:

‘’   All proceedings relating  to the environment and the use and occupation of,  and title to land pending before the Court of Appeal, High court,  Subordinate courts or Local Tribunal of                                competent jurisdiction – other than Land Disputes Tribunal …………shall  continue to be  heard  and determined by the same courts or  Tribunal. Any proceedings which shall not have                          been concluded by the time the Environment  and Land Court is established shall be moved to the  court upon its establishment.’’

This direction does not state that no action would be taken on environment and land cases until Environment and Land Court is established. It allowed the hearing to proceed before the courts the matters were pending, and it was in pursuant of this position the High Court heard the Defendants’ earlier application dated 24th November, 2011 and issued the orders of 28th May, 2012.

That  the Chief Justices practice  direction of 20th September, 2012 which revoked  those of 9th February, 2012 came into force after the period of 90 days from the court orders of 28th May, 2012.  Practice direction number 4 provided as follows;-

‘’All cases  relating to the environment and the use and occupation  of, and title to land which have hitherto been filed at the High Court and where hearing in relation thereto has yet to                            commence; shall be transferred to the Environment  and Land court as directed by the Chief Registrar.’’

There  is nothing in the Chief Justice’s practice directions of 20th September, 2012 to suggest that hearing dates would not be fixed until the establishment of the Environment  and Land  Court. It talked  about  the transfer  of fresh matters from the High Court  to this court. This  matter was referred to this court on  31st July, 2013.

That the Plaintiff/Respondent has not availed a copy of the instructions to the effect that dates would not be fixed  in environment and land cases or an affidavit from the Deputy Registrar or any other such registry staff  who may have communicated such information.  In any case, had there been such instructions, then  one wonders when they were  withdrawn for the Plaintiff/Respondent to be  attended on 13th September, 2012 when the mention date of 12th November, 2012 was fixed.

That the  above findings  confirms  that the Plaintiff’s/Respondent’s first step to fix this matter  for hearing from the date of the Court Order of 25. 5.2012 was on 13. 9.2012 when they fixed  this matter for mention on 12. 11. 2012. This step was been taken too late in the day as the 90 days period from 28. 5.2012 had lapsed on or about  28. 8.2012. The  Plaintiff/Respondent had not taken steps to have the period of 90 days fixed by the court on 28. 5.2012 extended before they  fixed the matter  for mention. No such  request  has been made before this court to date and their  explanations are not convincing.

That  the Defendants/Applicants were acting in pursuant  to the court order of 28. 5.2012 when  they filed the application dated 2. 11. 2012.  The provisions of Order 17 Rule 2 (4) of Civil Procedure  Rules  allows the filing of applications seeking  to dismiss  a suit for failure to  comply with the Court Order. The  court had  on 28. 5.2012  ordered  Plaintiff/Respondent  to.

‘’   take  appropriate action to fix the case  for hearing within ninety (90) days  of today’s date.’’

11. That  the pleadings  filed herein in reply to the originating summons dated 25. 10. 2004  by the Defendants/Applicants, being  the replying affidavit  by Khabala  Ochieno sworn on  3. 8.2005 do not  contain a counterclaim. The replying  affidavit only asks  that the originating summons  be dismissed. As such  the Defendants/Applicants attempt  to introduce their own claim through  prayer (b)  of their application dated 2. 11. 2012 is irregular     and in contravention of the courts   process.

In the upshot of the forgoing findings, the Plaintiff/Respondent has failed to comply with the courts order of 28. 5.2012, that he takes steps to fix the case for hearing in 90 days. The Defendants’/Applicants’ application  of 2. 11. 2012 has  merit and is allowed in terms of prayer (a) and (c). The Plaintiff/Respondent suit is dismissed with costs.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED..ON 27TH ..DAY OF  NOVEMBER, 2013.

IN THE PRESENCE OF;

JUDGE.