Orwaro v Kitutu Chache North Constituency Development Fund Board & 2 others [2024] KEELC 6446 (KLR)

Orwaro v Kitutu Chache North Constituency Development Fund Board & 2 others (Environment & Land Petition 4 of 2017) [2024] KEELC 6446 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6446 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisii

Environment & Land Petition 4 of 2017

M Sila, J

October 3, 2024

Between

Ongaro Orwaro

Petitioner

and

Kitutu Chache North Constituency Development Fund Board

1st Respondent

The Kisii County Government

2nd Respondent

The Board of Management Sieka (Dispensary) Health Centre

3rd Respondent

Ruling

1. The application before me is that dated 25 January 2024 filed by the petitioner. He seeks to have orders made on 16 November 2023, which dismissed his application dated 10 August 2023, set aside so that the application dated 10 August 2023 can be heard on merits. The application is opposed.

2. To put matters into context, this suit was commenced through a petition filed on 4 April 2017. The applicant contended to be the owner of the land parcel West Kitutu Chache/Mwakibagendi/ 3240. He complained that the respondents took possession of his land and put up a health facility known as Sieka Dispensary without regard to his rights. In the petition he sought a declaration of rights over the suit property, a permanent injunction to restrain the respondents from the suit land, damages and mesne profits. The petitioner died on 27 June 2022 before the suit could be heard and through an application dated 10 August 2023 an application for his substitution was filed. The application was fixed for hearing on 16 November 2023. On that day, an unidentified person who could not have been counsel, appeared in the online platform and stated that counsel has asked for the file to be placed aside. Despite the irregularity of not having counsel present to hold brief, I was gracious enough to place the file aside. I called it out at 9. 55am and there was no response and I proceeded to dismiss it for non-attendance.

3. In the supporting affidavit to the application, sworn by Patrick Nyougo Ongaro, the administrator of the estate of the deceased petitioner, it is deposed that he was in the office of his advocate M/s P.K Njiiri & Company when the file was called out and placed aside. He deposes that he expected Mr. Kariuki Njiiri to be in the office on time to handle the matter but before the court completed its causelist at around noon, they started experiencing poor network and that by the time the matter was called out they could not log in. He deposes that his advocate informed him that he would check on the matter. He continues to depose that on 16 January 2024 his advocate called him and informed him that they need to file an application, for his application for substitution was dismissed for non-attendance. He now pleads with the court to allow his application.

4. The 2nd & 3rd respondents filed Grounds of Opposition. Inter alia it is urged that the suit has already abated and not time has been sought for its revival.

5. I have considered the application. I am not entirely convinced on the depositions in the affidavit of the applicant. He seems to suggest that the court continued mentioning cases up to noon by which time his matter had not yet been called out and they suffered network challenges thereafter. The fact of the matter is that the file was dealt with at 9. 55am and there was nobody to attend to it. I think counsel was simply absent on that day and was nowhere to attend to the application otherwise he would have prosecuted it when it was first called out and a person from his office made the call for the file to be placed aside. I have already said that the person did not introduce himself/herself and was certainly not an advocate holding brief. I think Mr. Njiiri can do much better and I better not say much more.

6. It appears to me that the applicant was let down by his counsel. I do not wish to have the mistake of counsel visited on him and I will allow the application for reinstatement but subject to payment of thrown away costs of Kshs. 5,000/= payable in 14 days to the 2nd & 3rd respondents. In default of payment of the thrown away costs the application dated 10 August 2023 will stand dismissed.

7. Orders accordingly.

DATED AND DELIVERED THIS 3RD DAY OF OCTOBER 2024JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT KISIIDelivered in the presence of:Ms. Wanjiku h/b for Mr. Kariuki for the petitionerMr. Oirere for the 2nd & 3rd respondentsN/A for the 1st respondentCourt Assistant – David Ochieng’