Mwiandi & 11 others v Nakumana [2022] KEELC 15009 (KLR)

Mwiandi & 11 others v Nakumana (Environment and Land Case Civil Suit 257 of 2017) [2022] KEELC 15009 (KLR) (24 November 2022) (Ruling)

Neutral citation: [2022] KEELC 15009 (KLR)

Republic of Kenya

In the Environment and Land Court at Kajiado

Environment and Land Case Civil Suit 257 of 2017

MN Gicheru, J

November 24, 2022

Between

Evelyn Gatune Mwiandi

1st Plaintiff

John Mwina Lili

2nd Plaintiff

Alfonce Kioko Mutuku

3rd Plaintiff

John Mwololo

4th Plaintiff

John Ndumbi Kaleli

5th Plaintiff

Musyoki Philip Mulwa

6th Plaintiff

Samuel Kamuli Kitonga

7th Plaintiff

Joseph Kivuva Kioko

8th Plaintiff

Kiendi Mwololo Kilinga

9th Plaintiff

John Makau Muindi

10th Plaintiff

Kasyima Mulwa Musya

11th Plaintiff

Muuo Ndambuki

12th Plaintiff

and

Kaposhi Njoroge Nakumana

Defendant

Ruling

1. This ruling is on the notice of motion dated March 9, 2021. The said motion which is under order 24, rules 3 (1) and (2), order 51,rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act is supported by three grounds, a five paragraph affidavit and one annexure.

2. The gist of all the material filed by the applicant is that she is the daughter of Everlyne Gatune Mwiaki who was the first plaintiff herein. Unfortunately, her mother died on May 13, 2019 and it was not until the November 11, 2021 when she was issued with a limited grant to enable her participate in this case. The applicant therefore prays that she be appointed the legal representative of her deceased mother for the purposes of this case only.

3. The application is opposed by the defendant who has filed three grounds of opposition namely;a.That the application is fatally incompetent and devoid of merit.b.That the application is time barred.c.That the application is an abuse of court process.

4. Only the applicant’s counsel filed written submissions on May 20, 2022. No submissions were filed by the defendant by the deadline of 90 days given on May 23, 2022.

5. I have carefully considered the application in its entirety including the affidavit, grounds in support and grounds in opposition. I find that I should consider the application while referring to the grounds of opposition. On the first ground of opposition, I find that the application is not incompetent and without merit. This is because it has all the necessary ingredients including the law under which it is based, why it was filed and the necessary material to support it including the affidavit, grounds and annexure. Secondly, I find that the application is not time barred because under order 24, rule 3(2) and the proviso thereto, this court has discretion to extend the time beyond one (1) year. In this case good reasons have been advanced as to why this application could not be filed within a year.Finally, no reason has been advanced by the defendant in any form to prove that this application is an abuse of the court process. It is in fact a necessary step because the cause of action survives the first plaintiff, and it is said that the plaintiffs occupy the suit land.For the above stated reasons, I allow the notice of motion dated March 9, 2021. Order accordingly.

DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 24THDAY OF NOVEMBER, 2022. MN GICHERU