Joseph Kibera Mbugua & Kamau Mbugua v Hannah Mumbi Mbugua & Gordon Nguono Olando [2018] KEELC 1863 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC. NO. 599  OF 2015 (FORMELY CIVIL SUIT NO. 60 OF 2011)

JOSEPH KIBERA MBUGUA...............................1ST PLAINTIFF/APPLICANT

KAMAU MBUGUA...............................................2ND PLAINTIFF/APPLICANT

VERSUS

HANNAH MUMBI MBUGUA.......................1ST DEFENDANT/RESPONDENT

GORDON NGUONO OLANDO.....................1ST DEFENDANT/RESPONDENT

RULING

1. Kamau Mbugua, the 2nd Plaintiff, moved the court through the notice of motion dated 7th March 2018, brought under Section “1A, 1B, 3A of the Civil Procedure Rules and all other enabling provisions of the law”, seeking for the following orders;

a. “That this Honourable Court be pleased to certify this matter as urgent and service be dispensed with in the first instance.

b. That pending hearing and determination of this application interpartes, this honourable court be pleased to set aside its orders dismissing this suit for want of prosecution.

c. That this Honourable court be pleased to issue directions regarding the Plaintiff application dated 15th August 2014 and the pending ruling.

d. That costs be provided for.”

The notice of motion is based on the seven (7) grounds marked (i) to (vii) on its face and supported by the 2nd Plaintiff’s affidavit sworn on the 7th March 2018.

2. The application came up for hearing on the 20th March 2018 when counsel for the 2nd Plaintiff submitted that the application was unopposed and prayed for the orders sought.

3. The following are the issues for determinations;

a. Whether the Plaintiffs, specifically the 2nd Plaintiff has shown reasonable cause why he had not taken any steps to prosecute this suit for more than one year to the date the suit was dismissed for want of prosecution on the 21st March 2017.

b. Whether the court had set the ruling in respect of the notice of motion dated 15th August 2014 to be delivered on notice.

c. Who pays the costs of the application.

4. The court has carefully considered the grounds on the notice of motion, the affidavit evidence tendered by the 2nd Plaintiff, the record and come to the following findings;

a. That this suit was commenced by Joseph Kabera Mbugua and Kamau Mbugua, the 1st and 2nd Plaintiffs respectively, through the plaint dated 27th April 2011. The suit is against Hannah Mumbi Mbugua and Gordon Nguono Olando, the 1st and 2nd Defendants respectively. That the prayers sought are a declaration that the transfer of Kisumu/Fort-tenan/332 and 218 from the name of the late Mbugua Igwenya to the 1st Defendant and subsequent transfer of Kisumu/Fortenan/332 to the 2nd Defendant were fraudulent, unlawful, null and void; cancellation of the 1st and 2nd Defendant’s as proprietors of Kisumu/Fortenan/218 and 332 respectively; Permanent injunction against the 2nd Defendant over dealings with Kisumu/Fortenan/332 and costs.

b. That the court issued notice dated 7th December 2016 to show cause why the suit should not be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules for 21st March 2017. Though the notice was served to the parties counsel, none appeared and the suit was dismissed on that date, the 21st March, 2017. The record shows that on the 25th September 2017, the counsel for the 2nd Plaintiff fixed the matter for mention on the 11th October 2017 after the court found no urgency had been disclosed in the certificate dated 20th September 2017. That another mention was fixed for 26th February 2018 when the court drew the counsel’s attention to the dismissal order of 21st March 2017.  That another mention was fixed for 24th July 2018 but before then, the notice of motion dated 7th March 2018 was filed and fixed for hearing on 20th March 2018 when the date for ruling was fixed as 25th July 2018 and later moved to today due to the earlier date falling within the court’s annual leave.

c. That upon perusing the court record, it is apparent that the last time there was action taken towards prosecuting this suit was on the 5th May 2015 when the notice of motion by the 2nd Plaintiff dated 15th August 2014 was heard and the ruling set for 6th July 2015. There is no record whether the ruling was ever delivered, and if so, when. That by the time the notice to show cause dated 7th December 2016 was issued for parties to come to court on the 21st March 2017, a period of about one year, seven months and two days had lapsed. That as none of the parties appeared the curt proceeded to dismiss the suit for want of prosecution.

d. That the claim by the 2nd Plaintiff that they had been waiting for the ruling that had been reserved to be delivered on notice is not supported by the record and hence is misplaced. The 2nd Plaintiff claim in ground (iv) that “…the Plaintiff had tried to get a date but the file was unavailable as it was pending for a ruling”, is not supported by any copy of the correspondence done to the registry or by the registry. That if anything, the 2nd Plaintiff has failed to show whether he or his counsel attended the court on the 6th July 2015 which was the date set for the ruling and or what steps he took to have another date for the ruling set or fixed. That notwithstanding, the court takes the position that the registry equally failed to bring up the file to the trial Judge  to prepare the ruling after the hearing of the 5th May 2015 and for that reason alone the dismissal order of 21st March 2017 is hereby set aside with no orders as to costs.

5. That following from the foregoing, the court allows the 2nd Plaintiff’s notice of motion dated 7th March 2018 in the following terms;

a. That the dismissal order of 21st March 2017 is hereby set aside and the suit reinstated.

b. That the court having noted that the ruling on the notice of motion dated 15th August 2014 set for 6th August 2014 was never prepared and delivered will proceed to prepare it for delivery on the date set for this ruling.

c. The 2nd Plaintiff do bear his own costs in this application

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE

DATED AND DELIVERED THIS 26th DAY OF September 2018

In the presence of:

Plaintiffs   2nd Plaintiff present

Defendants Absent

Counsel    None

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE