Ngubiru & 3 others v Gachewa [2022] KEELC 3326 (KLR)

Ngubiru & 3 others v Gachewa (Environment & Land Case 169 of 2013) [2022] KEELC 3326 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEELC 3326 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 169 of 2013

LC Komingoi, J

June 9, 2022

Between

Peter Githinji Ngubiru

1st Plaintiff

Samuel Njue Ngiriri

2nd Plaintiff

Olanda Lordvicus Shibie Wameyo

3rd Plaintiff

Francis Ng’ang’a Wanyoike

4th Plaintiff

and

Solomon Ireri Gachewa

Defendant

Ruling

1. This is the Notice of Motion dated 10th January 2022 brought section 10 of the Judicature Act, rule 3(1) and (2) of the High Court (practice and procedure rules), Part III of the High Court (Organization and Administration) (General) Rules, 2016, section 3A, 3B of the Civil Procedure Act of 2010, order 42 rule 6 and order 12 rule 6 of the Civil Procedure Rules and all the other enabling provisions of the law.

2. It seeks orders:-a.Spent.b.That an order be and is hereby granted reinstating for purposes of being heard on merit the application dated 2nd March 2021 which was dismissed by the order of this honourable court issued on the 13th October 2021. c.Spent.d.Spent.e.That the cost of this application be granted.

3. The grounds are on the face of application and set out in paragraphs 1 to 14.

4. The application is supported by the affidavit of Solomon Ireri Gachewa, the Defendant/Applicant herein sworn on the 10th January 2022.

5. The application is opposed. There is a replying affidavit sworn by Peter Githinji Ngubiru, the 1st Plaintiff/Respondent sworn on the 9th February 2022.

6. It is the Defendant’s/Applicant’s case that he should be given an opportunity to ventilate his case. Further that a mistake of counsel ought not to be visited on a litigant.

7. The Plaintiffs/Respondents on the other hand contend that allowing the application will not serve any useful purpose in light of the defence filed. Further that the notice of motion dated 2nd March 2021 was dismissed for non attendance and that this application has been brought after inordinate delay.

8. I have considered the notice of motion and the affidavit in support. I have considered the affidavit in response and the oral submissions. The issue for determination is whether this application is merited.

9. I have gone through the court record. The same is clear. The Defendant has never been desirous of prosecuting his case. The Plaintiffs case was heard exparte after the same was confirmed for hearing at 11:30 a.m. on 1st October 2018 in the presence of counsel holding brief for Mr. Muriuki for the Defendant.

10. On the 1st November 2018 Mr. Ong’anda for the Defendant sought time so that parties could reach a settlement. On the 13th February 2019, parties sought more time to finalise on settlement.

11. On the 9th April 2019, the Defendant’s counsel sought more time for parties to reach a settlement.

12. On the 15th July 2019, Mr. Maosa stated that he had just come on record for the Defendant. The Defendant was given time to comply with Order 11 of the Civil Procedure Rules and the matter was set for mention on 14th May 2020.

13. On the 7th December 2020, there was no appearance for the Defendant and the matter was set down for judgment. Judgment was delivered on 18th February 2021.

14. On the 2nd March 2021 the Defendant/Applicant filed an application to set aside the judgment of 18th February 2021. The same was not prosecuted culminating in the dismissal on 13th October 2021.

15. The Defendant/Applicant filed this application on 10th January 2022 about three months later. In my view the same has been brought after undue delay. The delay has not been explained.

16. I have gone through the defence on record. The Defendant admits he executed the sale agreements. In my view, allowing this application and/or setting aside the judgment dated 18th February 2021 will not serve any purpose in light of the defence.

17. The Plaintiffs ought to be allowed to enjoy the fruits of their judgment.

18. In conclusion, I find no merit in this application and the same is dismissed with costs to the Plaintiffs.

19. It is so ordered.

DATED, SIGNED AND DELIVERED NAIROBI THIS 9TH DAY OF JUNE 2022. ..................................L. KOMINGOIJUDGEIn the presence of:-Mr. Kimani for the PlaintiffsMs Orina for the DefendantSteve - Court Assistant