Miriga v Mapengo & another [2023] KEELC 18312 (KLR)

Miriga v Mapengo & another (Environment & Land Case 39 of 2018) [2023] KEELC 18312 (KLR) (26 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18312 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 39 of 2018

SM Kibunja, J

June 26, 2023

Between

Fred E. Miriga

Plaintiff

and

Ochieng Mapengo

1st Defendant

County Government of Mombasa

2nd Defendant

Ruling

1. The plaintiff filed the application dated the October 14, 2022 through Ms. Gichana Bw’omwando & Co. Advocates seeking for setting aside and or varying of the order of November 16, 2020 dismissing the application dated the September 16, 2020 for non-attendance, and reinstating the same. The application is based on the six (6) grounds on its face and supported by the affidavit of Edward M. Gichana advocate sworn on the October 17, 2022. It is the plaintiff’s case that the application dated the September 16, 2020 was coming up for hearing on the November 16, 2020. That as he had lost his job and it was during the corona virus pandemic, he was unable to facilitate his then counsel with whom he had a communication breakdown. That the application was then dismissed for non-attendance and that order should be set aside and the application reinstated.

2. The application is opposed by the proposed 2nd defendant through their replying affidavit sworn by Jimmy Waliula, Acting County Attorney, on the February 20, 2023. It is their case inter alia that Ms. Gichana Bw’omwando & Co. Advocates have not sought leave of the court and are not properly on record for the plaintiff; that the application offends Rule 8 of the Advocates (Practice) Rules; the plaintiff has changed advocates thrice since 2018, and his claim of financial difficulties cannot be true; that the plaintiff did not need to travel from the USA for hearing of the joinder application, and has failed to meet the threshold for the prayers sought to be granted.

3. That when the application came up for hearing on the April 19, 2023, only counsel for the plaintiff was present and he moved the court proceed and write a ruling on the material before it.

4. The following are the issues for the determinations by the court;a.Whether the plaintiff has tendered a reasonable explanation on his absence and or that of his counsel on the November 16, 2020, on which date his application dated the September 16, 2020 was dismissed for non-attendance.b.Whether the application was timeously filed.c.Whether the firm of Ms. Gichana Bw’omwando & Co. Advocates are properly on record for the plaintiff.d.Who pays the costs of the application.

5. The court has carefully considered the grounds on the application, affidavit evidence by both parties, the record and come to the following determinations;a.That this proceeding was commenced by the plaintiff against one Ochieng Mapengo, the defendant, through the plaint filed in person dated the February 16, 2018. b.Ms. Obara & Obara Advocates came on record for the plaintiff through their notice of appointment of advocates dated the February 28, 2018. c.Ms. Sang & Langat Advocates filed notice of change of advocates and notice of appointment of advocates both dated the March 13, 2018 coming on record for the plaintiff in place of Ms. Obara & Obara Advocates.d.The application dated the July 23, 2018 for inter alia joinder of one Abubakar Joho, as the 2nd defendant, was subsequently filed on the July 24, 2018. e.That Ms. H. N. Njiru & Co. Advocates filed their notice of appointment of advocates dated the October 31, 2019 coming on record for the plaintiff in place of Ms. Sang & Langat Advocates.f.The record confirms that Ms. Oduol Achar & Co. Advocates filed a notice of change of advocate dated the September 16, 2020 coming on record for the plaintiff in place of Ms. Sang & Langat Advocates.g.Then the plaintiff filed the notice of motion under certificate of urgency dated the September 16, 2020 through the firm of Ms. Sang & Langat Advocates, seeking for joinder of the County Government of Mombasa as the 2nd defendant. The record shows that the application was placed before the duty judge on the September 24, 2020 who directed it to be served for inter partes hearing on the November 16, 2020. The record further shows that on that date, the November 16, 2020, only counsel for the proposed 2nd defendant attended the hearing, and upon his oral application the application was dismissed with costs.h.The court issued notice to show cause why the suit should not be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules dated the August 25, 2022 that shows it was for hearing on the November 9, 2022. i.Ms. Gichana BW’omwando & Co. Advocates filed the notice of appointment of advocates dated the 5th September 2022 coming on record for the plaintiff in place of Ms. Oduol Achare & Co. Advocates, and thereafter filed the instant application dated the October 14, 2022 seeking to be set aside and application reinstated. It is clear from the November 16, 2020, when the application dated the September 16, 2020 was dismissed for non-attendance, to the October 14, 2022 when the instant application was filed, a period of about two years, to be specific close to twenty-three (23) months, had lapsed. The plaintiff has not attempted to explain that delay yet he had filed the application dated the September 16, 2020 that was dismissed on the November 16, 2020 under certificate of urgency. I find the delay was inordinate.j.The claim by the plaintiff that the Covid 19 pandemic affected his failure to facilitate his advocates and his personal travels to be in court on the November 16, 2020 for the hearing do not appear reasonable to the court. This is because it was the plaintiff who in the first place filed the application dated the September 16, 2020 through counsel. The application was on September 24, 2020 fixed for hearing inter partes on the 16th November 2020. The fact that counsel for the proposed 2nd defendant was in court on the November 16, 2020 is evidence that they had been served with the application and hearing notice by counsel for the plaintiff. Surely the plaintiff cannot expect the court to believe him when he turns around and blames the pandemic for his failure and or that of his counsel to attend the court for hearing of his application.k.On the issue of whether Ms. Gichana BW’omwando & Co. Advocates, are properly on record for the Plaintiff, the court has taken time to set in the preceding paragraphs the names of all the counsel and the dates of the notices they filed signaling their coming on record for the plaintiff. That as it can be seen in (e) above, Ms. H. N. Njiru & Co. Advocates came on record for the plaintiff in place of Ms. Sang & Langat Advocates on 1st November 2019 upon filing their notice dated the 31st October 2019. That even though there is no evidence that Ms. Sang & Langat Advocates were given fresh instructions to represent the plaintiff after that, they proceeded to file the application dated the September 16, 2020 for the plaintiff that was dismissed for non-attendance on the November 16, 2020. That application was filed by a counsel not properly on record and it would be of no use to consider reinstating it as it is a non-starter.l.That the notice of appointment of advocates dated the September 5, 2022 filed on the September 6, 2022 indicates that counsel was coming on record in place of Ms. Oduol Achare & Co. Advocates. That as can be seen in (f) above, Ms. Oduol Achar & Co. Advocates had come on record for the plaintiff in place of Ms. Sang & Langat Advocates. Ms. Sang & Langat Advocates had by then been replaced by Ms. H. N. Njiru & Co. Advocates as shown in (e) above, who to date has not been replaced. It follows therefore, that Ms. Gichana Bw’omwando & Co. Advocates are not properly on record for the plaintiff. The plaintiff need to urgently sought the issue of his legal representation, and avoid the filing of multiple applications that he is not keen in following up on.m.That having found no merit on the notice of motion dated the October 14, 2022, then under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, the plaintiff should pay the County Government of Mombasa, proposed 2nd defendant, the costs in the application.

6. The upshot of the foregoing is that the plaintiff’s application dated the October 14, 2022 is without merit and is dismissed with costs to the proposed 2nd defendant.Orders accordingly.

DATED AND VIRTUALLY DELIVERED THIS 26th DAY OF JUNE 2023. S. M. KIBUNJA, J.ELC MOMBASA.In The Presence Of:Plaintiff: AbsentDefendant : AbsentProposed 2nd Defendant : AbsentCounsel : Mr Mtana for plaintiff.Wilson – Court Assistant.S. M. KIBUNJA, J.ELC MOMBASA.