Peter Onkoba Orora v Prime Ministries International & Duncan Mungai & County Government of Machakos [2019] KEELC 822 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 160 OF 2017

PETER ONKOBA ORORA...............................................................PLAINTIFF

VERSUS

PRIME MINISTRIES INTERNATIONAL............................1ST DEFENDANT

DUNCAN MUNGAI................................................................2ND DEFENDANT

COUNTY GOVERNMENT OF MACHAKOS....................3RD DEFENDANT

RULING

1. In the Notice of Motion dated 21st June, 2019, the Plaintiff has prayed for the setting aside of the orders of 20th June, 2019 dismissing this matter for want of prosecution. The Application is premised on the grounds that the suit was dismissed without the Applicant having been given a notice for the dismissal of the suit and that it is only fair, just and in the interest of justice that this suit be reinstated and be heard on merit.

2. In his Supporting Affidavit, the Plaintiff deponed that he instructed the firm of Orondo Tuli & Co. Advocates to institute this suit; that every time the matter was fixed for hearing, his advocates attended court and that he later came to learn that the court had dismissed the matter for want of prosecution on 20th June, 2019.

3. According to the Plaintiff, he further learnt that his advocate had mis-diarized the date and did not therefore appear in court on 20th June, 2019 resulting to the court dismissing the suit and that mistakes done by an advocate should not be visited on the client.  The Application was not opposed by the Defendants. The Plaintiff’s advocate did not file written submissions. He relied on the Affidavit on record.

4. The record shows that after the filing of this suit on 5th April, 2017, the matter came up before the Deputy Registrar for Pre-trial Conferences on 8th May, 2017; 18th June, 2017; on 10th October, 2017 and on 27th February, 2018.

5. When the matter came up for hearing on 2nd May, 2018, the Plaintiff’s advocate was ready to proceed. However, the case was adjourned at the behest of the Defendants. On 30th May, 2018, the matter was adjourned again. On the said date the court directed as follows:

“The Plaintiff is given an adjournment.  This being an environmental issue, I shall grant to the Plaintiff the last adjournment. Hearing on 4th December 2018. ”

6. The matter did not proceed for hearing on 4th December, 2018 because the court was not sitting. The Plaintiff’s advocate then fixed the matter for hearing on 18th June, 2019. On the said date neither the Plaintiff nor his advocate were in court. The court dismissed the suit for want of prosecution.

7. It is the Plaintiff’s advocate who fixed the date of 18th June, 2019 for the hearing of the suit. Indeed, while fixing the said date, the Plaintiff’s advocate was aware that the court had granted the Plaintiff the last adjournment.

8. Although the Plaintiff deponed that his advocate mis-diarized the hearing date when the matter was to come up for hearing, he has not annexed any evidence of the alleged mis-diarization. In fact, the Plaintiff’s advocate has not sworn an Affidavit stating that he mis-diarized the hearing date.

9. In the circumstances, I find that the Plaintiff has not satisfied the court that his absence in court on 18th June, 2019 was due to an honest excusable mistake. For those reasons, I dismiss the Notice of Motion dated 21st June, 2019 but with no order as to costs. For avoidance of doubt, this suit stands dismissed.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 1ST DAY OF NOVEMBER, 2019.

O.A. ANGOTE

JUDGE