Kyalo Munyao , Musyoka Ususu,Daniel Mutinda,Patrick Ngovi,Simon Makau,Kavoi Masai, Stephen Mulwa & Francis Mutisya Tumbo v Boniface Makau Muia, John Makumi, Patrick Muasa Katiku & Ngunya Muteta [2017] KEELC 3322 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 288 OF 2012

KYALO MUNYAO …………...….….1ST PLAINTIFF/APPLICANT

MUSYOKA USUSU ……….….......2ND PLAINTIFF/APPLICANT

DANIEL MUTINDA ………….….....3RD PLAINTIFF/APPLICANT

PATRICK NGOVI ……………….....4TH PLAINTIFF/APPLICANT

SIMON MAKAU ……………….......5TH PLAINTIFF/APPLICANT

KAVOI MASAI ……………….….....6TH PLAINTIFF/APPLICANT

STEPHEN MULWA ………….….....7TH PLAINTIFF/APPLICANT

FRANCIS MUTISYA TUMBO …..…8TH PLAINTIFF/APPLICANT

VERSUS

BONIFACE MAKAU MUIA ..….1ST DEFENDANT/RESPONDENT

JOHN MAKUMI …………........2ND DEFENDANT/RESPONDENT

PATRICK MUASA KATIKU ….3RD DEFENDANT/RESPONDENT

NGUNYA MUTETA ……...…...4TH DEFENDANT/RESPONDENT

RULING

1. What is before me is the Plaintiffs’ Application dated 16th March, 2015 in which he is seeking for the following orders:

a. That this Honourable Court be pleased to review and/or set aside its order issued on 12th March, 2015 pursuant to a Ruling delivered on 2nd May, 2014 and all the consequential orders thereto.

b. That the costs of this Application be in the cause.

2. The Application is premised on the grounds that the court delivered its Ruling on 2nd May, 2014 and found that this suit is sub-judice; that the court was not aware of the fact that CMCC No. 1104 of 2011 had long being determined and that the Plaintiff had pleaded in the Plaint that the lower court could not hear CMCC No. 1104 of 2011 for want of jurisdiction and that there is an error apparent on the face of the record.

3. The 1st Plaintiff has deponed that he was not aware of the Ruling in this matter until 10th February, 2015 and that sufficient reasons have been given as to why the Ruling of the court should be reviewed.

4. In response, the 1st Defendant deponed that the Plaintiffs are guilty of laches; that the Application goes against the spirit of the Civil Procedure Act and that the Application should be dismissed.

5. The Plaintiffs’ counsel submitted that the previous counsel for the Plaintiffs failed to file submissions in respect to the Defendants’ Preliminary Objection; that even after the court delivered its Ruling, he failed to inform the Plaintiffs of the Ruling and that the finding of the court was arrived at on account of an error of fact.

6. Counsel submitted that litigants should not be punished for the errors of their advocates.  Counsel relied on several authorities which I have considered.

7. The Defendants’ counsel submitted that the delay in filing the current Application is unreasonable; that the Plaintiffs have not come to the court with clean hands and that the Application should be dismissed.

8. The Defendants filed a Preliminary Objection dated 24th October, 2012 in which they claimed that other than this suit, the Plaintiffs had instituted another suit being Machakos CMCC No. 1104 of 2011.

9. When the Preliminary Objection came up for hearing on 14th November, 2013, the court directed parties to file and exchange submissions. The Plaintiffs’ previous advocates did not file submissions.

10. The court proceeded to deliver a Ruling on the Preliminary Objection without the benefit of the Plaintiffs’ submissions on the issue of whether indeed there was another pending suit being Machakos CMCC No. 1104 of 2011.

11. In its Ruling, the court stated that the“Plaintiffs have chosen to remain silent on the issue of whether they have already filed a similar suit before the Chief Magistrate’s Court in Machakos.” The Court proceeded to allow the Defendants’ Preliminary Objection in the absence of a response from the Plaintiffs.

12. It is therefore clear from the record that the Ruling of 2nd May, 2014 was arrived at without the benefit of the court record in Machakos CMCC No. 1104 of 2011.

13. The Plaintiffs have also deponed that their previous advocate never informed them of the Ruling of 2nd May, 2014.

14. The Plaintiffs have informed the court that indeed they had pleaded in their claim that they had filed Machakos CMCC No. 1104 of 2011 but the court declined to hear the matter for lack of jurisdiction.

15. The Defendants were aware of this averment in the Plaint but did not bring it to the attention of the court. Indeed, the Plaintiffs have now annexed a Ruling in Machakos CMCC No. 1104 of 2011 which shows that the court declined to hear the matter for want of jurisdiction.

16. Considering that the lower court declined to hear the matter for want of jurisdiction and advised the Plaintiffs to file the current suit, I find and hold that the Plaintiffs have shown sufficient reasons to warrant the review of the orders of 2nd May, 2014.

17. Although the Application was filed after a period of nine (9) months, I am compelled to agree with the Plaintiffs that they were not informed by their previous advocate, who did not even oppose the Preliminary Objection, about the Ruling.

18. For that reason, I find that the Application was filed within reasonable time after the Plaintiffs learnt about the Ruling.

19. In the circumstances, I allow the Notice of Motion dated 16th March, 2015 as prayed.

DATED AND DELIVERED AT MACHAKOS THIS 31STDAY OF MARCH, 2017.

OSCAR A. ANGOTE

JUDGE