Mbukoni Holdings Ltd, Jared Otieno Ngoje, Robert Nyambando Nduko, John Musembi Mutala, George Morara Momanyi, Michael Njama Kamau, Selina Ndungwa Iseva, Erick Murithi Gathumbi, Jenipher Wambui, Samuel Munyiri Mukwa, Davis Nyagaka Nyamwange, Hiram Maina Chege, Dennis Wanyonyi Masinde, Reuben Laisa Murunga, Ernest Achuti Gambi, Priscilla Wamaitha Mithambo & Erastus Muchemi Eustace v Racheal Nthenya Luvita, John Munyao Muindi, Mulika Muindi & Florence Muoti Kioko [2019] KEELC 1462 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. CASE NO. 22 OF 2017

MBUKONI HOLDINGS LTD..................................1ST PLAINTIFF

JARED OTIENO NGOJE........................................2ND PLAINTIFF

ROBERT NYAMBANDO NDUKO.........................3RD PLAINTIFF

JOHN MUSEMBI MUTALA...................................4TH PLAINTIFF

GEORGE MORARA MOMANYI..........................5TH PLAINTIFF

MICHAEL NJAMA KAMAU.................................6TH PLAINTIFF

SELINA NDUNGWA ISEVA...................................7TH PLAINTIFF

ERICK MURITHI GATHUMBI.............................8TH PLAINTIFF

JENIPHER WAMBUI..............................................9TH PLAINTIFF

SAMUEL MUNYIRI MUKWA.............................10TH PLAINTIFF

DAVIS NYAGAKA NYAMWANGE......................11TH PLAINTIFF

HIRAM MAINA CHEGE......................................12TH PLAINTIFF

DENNIS WANYONYI MASINDE........................13TH PLAINTIFF

REUBEN LAISA MURUNGA...............................14TH PLAINTIFF

ERNEST ACHUTI GAMBI...................................15TH PLAINTIFF

PRISCILLA WAMAITHA MITHAMBO.............16TH PLAINTIFF

ERASTUS MUCHEMI EUSTACE.......................17TH PLAINTIFF

VERSUS

RACHEAL NTHENYA LUVITA........................1ST DEFENDANT

JOHN MUNYAO MUINDI..................................2ND DEFENDANT

MULIKA MUINDI...............................................3RD DEFENDANT

FLORENCE MUOTI KIOKO............................4TH DEFENDANT

RULING

1. In the Notice of Motion dated 23rd April, 2019, the Plaintiffs are seeking for the following orders:

a. This Honourable Court be pleased to review its orders made on 9th April, 2019 dismissing this suit for want of prosecution and reinstate it.

b. This Honourable Court be pleased to reinstate the conservatory orders issued by this Honourable Court on 8th July, 2014.

c. The costs of this Application be provided for.

2. The Application is premised on the grounds that the Plaintiffs’ suit was dismissed on 9th April, 2019; that the delay in prosecuting the suit was caused by the prolonged procedures of substituting the 1st Defendant and that the Plaintiffs accommodated the 1st Defendant’s (deceased) advocate to take out Letters of Administration, thus occasioning delay in prosecuting the suit.

3. The 1st Plaintiff’s Director deponed that the 1st Defendant was substituted on 30th January, 2019; that the date of 9th April, 2019 was fixed unilaterally by the Defendants’ advocate and that the fixing of the suit for hearing was pre-mature because both parties had not complied with pre-trial requirements.

4. The 1st Plaintiff’s Director finally deponed that the subject matter concerns land which is occupied by the Plaintiffs; that the dismissal of the suit without hearing it on merit has left a very unhappy and explosive situation on the ground and that the circumstances of this case enjoin the court to give effect to Article 159 (2) (d) of the Constitution in order to do substantive justice as opposed to express dismissal of the suit on technical grounds

5. In reply, the Defendants’ advocate deponed that the Plaintiffs’ suit was dismissed for non-attendance and want of prosecution; that on 8th July, 2014, the Plaintiffs were given forty five (45) days by the court to comply with Order 11 of the Civil Procedure Rules and that the Plaintiffs have the habit of filing incompetent suits and abandoning them.

6. The 1st Plaintiff’s Director filed a Supplementary Affidavit in which he deponed that since the matter was coming up for hearing for the first time, the court should have accommodated the Plaintiffs’ request and that it is in the interest of justice for the court to review and vary its orders by reinstating the suit. Neither the Plaintiffs’ nor the Defendants’ advocate filed submissions.

7. The record shows that the Plaintiffs filed this suit on 27th February, 2014.  After ordering for the status quo obtaining to be maintained pending the hearing of the suit, on 8th July, 2014, the court gave the following directions:

“The parties are directed to comply with Order 11 of the Civil Procedure Rules within the next forty five (45) days from the date hereof.  The matter is fixed for a pre-trial conference on 13th October, 2014. ”

8. It would appear that the matter was never mentioned on 13th October, 2014 as directed. However, on 25th February, 2015, the court made the following orders:

“Matter certified to be ready for trial. Parties at liberty to fix a hearing date at the court registry.”

9. The order of the court certifying the matter ready for hearing was made after the Plaintiffs’ advocate informed the court that the Plaintiffs had complied with the provisions of Order 11 of the Civil Procedure Rules.

10. It would appear that the Plaintiffs never fixed the matter for hearing in the registry as ordered by the court. However, on 30th January, 2019, the Defendants’ Application dated 12th April, 2018 for the substitution of the 1st Defendant (deceased) with the Applicant, Racheal Nthenya Luvita, was allowed by the court.  The court then fixed the matter for hearing on 9th April, 2019.

11. When the matter came up for hearing on 9th April, 2019, the Plaintiffs’ counsel applied for the matter to be adjourned on the ground that “pre-trial directions have not been taken.”  According to the Plaintiffs’ counsel, the Plaintiffs had not filed their documents and required more time to do so. The Plaintiffs’ advocate’s oral Application for adjournment was opposed by the Defendants’ counsel.

12. After hearing the Plaintiffs’ advocate for adjournment, the court made a short Ruling as follows:

“The pre-trial directions were given on 8th July, 2014 when parties were required to comply within forty five (45) days.  The Plaintiffs now say that they are not ready.  The Plaintiffs are not in court.  The suit having been filed in 2014 and the pre-trial conference having been done on 8th July, 2014, I find that no good reason has been given to adjourn the matter. I therefore decline the Application for adjournment.”

13. When the Plaintiffs’ advocate informed the court that it cannot proceed with the matter after the above Ruling was delivered, the court dismissed the suit for want of prosecution and non-attendance on the part of the Plaintiffs.

14. The Plaintiffs have not adduced any new evidence or sufficient reasons to enable the court review its orders of 9th April, 2019. Indeed, having informed the court on 25th February, 2015 that it had complied with the provisions of Order 11 of the Civil Procedure Rules, the Plaintiffs’ Application for adjournment four (4) years down the line on the ground that it had not complied with Order 11 of the Civil Procedure Rules was not only mischievous, but also an abuse of the court process.

15. Indeed, the mere fact that the 1st Defendant died during the pendence of these proceedings and was subsequently substituted could not have been a reason for the Plaintiffs to adjourn the matter on 9th April, 2019. In any event, the only reason that the Plaintiffs’ advocate gave on 9th April, 2019 for the adjournment was that it had not complied with Order 11 of the Civil Procedure Rules, and not that the deceased 1st Defendant had been substituted.

16. In view of my observations above, I find that the Plaintiffs have not given any sufficient reason, or any additional evidence, to enable me review the order of 9th April, 2019.

17. The Application dated 23rd April, 2019 is therefore dismissed with costs. For avoidance of doubt, this suit stands dismissed with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 4TH DAY OF OCTOBER, 2019.

O.A. ANGOTE

JUDGE