Muratha & 17 others v Wambaki & 5 others [2022] KEELC 2459 (KLR)

Muratha & 17 others v Wambaki & 5 others (Environment and Land Case Civil Suit 1206 of 2015) [2022] KEELC 2459 (KLR) (28 April 2022) (Ruling)

Neutral citation: [2022] KEELC 2459 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Case Civil Suit 1206 of 2015

LC Komingoi, J

April 28, 2022

Between

Michael Njuguna Muratha

1st Plaintiff

Catherine Njeri Kiboi

2nd Plaintiff

Benjamin Njuguna

3rd Plaintiff

David Kahonge Kamau

4th Plaintiff

Simon Mwangi

5th Plaintiff

Zacharia Githinji Ng’ang’a

6th Plaintiff

Charles Mwangi Gatu

7th Plaintiff

Veronica Wambui Mugo

8th Plaintiff

Peter Kimani

9th Plaintiff

Peter Waweru

10th Plaintiff

Peter Njoroge Mwangi

11th Plaintiff

Peter Ngige Moses

12th Plaintiff

Joseph Muiruri Mbugua

13th Plaintiff

Lucy Waithera Kamau

14th Plaintiff

Joseph Mbugua

15th Plaintiff

Felistas Njeri

16th Plaintiff

Johnson Kinua

17th Plaintiff

Francis Muhoro

18th Plaintiff

and

Margaret Nge’endo Wambaki

1st Defendant

Teresia Wanjiku Wambaki

2nd Defendant

Joseph Kimani Gathecha

3rd Defendant

Sameul Kamau Kuria

4th Defendant

Mary Wairimu Muringu t/a Wakibui Help Group Investment

5th Defendant

Chief Lands Registrar Thika

6th Defendant

Ruling

1. This is the notice of motion dated 3st November 2021 brought under section 1A, 1B(a), 3 and 3A, section 63 (e) of the Civil Procedure Act Cap 21, order 51 rule 1 and all other enabling provisions of the law.

2. It seeks orders:-a.That the Plaintiffs/Applicants be allowed to reopen their case ad call for or provide further evidence in relation to this suit.b.That costs be in the cause.

3. The grounds are on the face of the application and are set out in paragraphs 1 to 7.

4. The application is supported by the affidavit of Michael Muratha, the 1st Plaintiff/Applicant herein sworn on the 3rd November 2021.

5. The application is opposed. There is a replying affidavit sworn by Joseph Kimani Gatheca, the 3rd Defendant/Respondent on the 10th November 2021.

6. I have considered the notice of motion and the affidavit in support. I have also considered the replying affidavit, and the submissions filed on behalf of the Plaintiffs. The issue for determination is whether this application is merited.

7. Order 18 rule 10 of the Civil Procedure Rules provides that:-“The court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force; put such questions to him as the court thinks fit.”

8. I have considered the rival positions. It is the Plaintiffs’ case that the case ought to be re-opened in order for them to adduce additional evidence.

9. I have considered the circumstances of this case and I find that it is in the interest of justice that I allow the application.

10. I find merit in this application and the same is allowed. The costs be borne by the Plaintiffs.

It is so ordered.

DATED, SIGNED AND DELIVERED NAIROBI THIS 28TH DAY OF APRIL 2022. ……………………….L. KOMINGOIJUDGEIn the presence of:-Ms Wachira for Mr. Kahuthu for the PlaintiffsMr. Njonjo for the DefendantsSteve - Court Assistant