REGISTERED TRUSTEES OFTHE AGRICULTURAL SOCIETY OF KENYA v MERU GOLF COURSE LIMITED, ATTORNEY GENERAL & MERU PUBLIC GOLF COURSE [2008] KEHC 1820 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 1637 of 2007

THE REGISTERED TRUSTEES OF

THE AGRICULTURAL SOCIETY OF KENYA ……….  APPLICANT

VERSUS

MERU GOLF COURSE LIMITED……...……….    1ST DEFENDANT

THE HON. ATTORNEY GENERAL ……………..  2ND DEFENDANT

MERU PUBLIC GOLF COURSE ………………..  3RD DEFENDANT

RULING

APPLICATION TO ENLARGE TIME TO FILE

REPLY TO DEFENCE AND COUNTER CLAIM

22MARCH 2007

1. BACKGROUND

1.   The original suit involves LR20888  being 40. 47 hectares of land or 100 Acres that had been taken from the upper Imenti forest and carried out some time in 1981 to 1983.  This land was allegedly given to the Agriculture Society of Kenya.  They allegedly took possession and continued to hold shows.

2.   On the Narc Government coming to power in the year 2003, the Chief Conservation of forest allocated to the Meru Golf Course Ltd and the Meru Pubic Golf Course the said land which they took possession to construct a golf course.

3.   The Agriculture society of Kenya filed suit in 2005.  The 1st and 3rd defendant the said Public Golf Course filed defence and counter claim.  The 2nd defendant the Attorney General did appear to court and filed defencne.

4.   In October 2006 the 16th the said defendant 1  and  3  applied for this suit to be dismissed and or struck out for lack of locus.  The application has not been heard.

5.   On 22 March 2007 the plaintiff filed an application for leave to file a reply to the defence and to the counter- claim out of time.

6.   Under section 6 of the Civil Procedure Act the application of 16. 10. 2006 ought to have been heard first.  This anomaly would have been noticed if a call over had been made.  The call over for May 2005 was not done under the Division.

7.   The application before me therefore and subject of this ruling is 22 March 2007.

Application of 22 March 2007

8.   The applicant plaintiff states the advocate made a mistake.  This mistake should not be visited upon the plaintiff/applicant – the client.

9.   They now pray for enlargement of time to file a reply to the defence and counter-claim.

10.  In reply the defendant 1 and 3 object and state that the law ought to have been followed.

III:  Opinion

11.  I would find that the plaintiff/applicant should be given leave to file and service their said reply and reply to counter claim out of time.  The reasons being that a mistake of an advocate should not be visited on the client.  That this be done  within 14 days of today’s date.

12.  The advocate for plaintiff nonetheless will pay the throw away costs personally assessed at Ksh.5,000/- to defendant 1 and 3 Ksh.1,000/- to defendant No.2.

13.  Dated this 8th day of May 2008 at Nairobi.

M.A. ANG’AWA

JUDGE

N.K. Selim instructed by N.K. Selim & Co. Advocates for the plaintiff

A. Kinuthai instructed by G.K. Meenye & Co. Advocates for the 3rd defendant/respondents – present

B.M. Chahale for the Attorney General for the 2nd defendant/Respondent - present