TERESIA KAGONDU ELASTU v MWOBE GATHUTE AND LAND REGISTRAR KIANYAGA [2009] KEHC 494 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Civil Case 122 of 1995

TERESIA KAGONDU ELASTU………………......……..PLAINTIFF/APPLICANT

VERSUS

MWOBE GATHUTE……….……….……….….1ST DEFENDANT/RESPONDENT

LAND REGISTRAR KIRINYAGA………....…..2ND DEFENDANT/RESPONDENT

RULING

MWOBE GATHUTE, the 1st Defendant herein, took out the Motion dated 10th September 2009 in which he applied to have the judgment delivered on 17th March 1999 to be set aside by an order of review.  The motion is supported by the affidavit sworn by the applicant.  TERESIA KAGONDU ELASTO, the Plaintiff herein, opposed the motion by filing grounds of opposition.

When the motion came up for interpartes hearing, the Plaintiff and her advocate failed to turn up hence the motion proceeded for hearing exparte.  The law, however, enjoins this Court to consider the grounds already filed despite the absence of the Respondent and her counsel.  The grounds of opposition dated 2nd April 2009 raised two preliminary points which I think I should consider before taking into account the merits of the motion.  First it is said that the Applicant did not cite the provisions under which the motion is brought.  Secondly, it is argued that the motion is resjudicata.  I have perused the motion and it is apparent that the Applicant did not cite the provision the motion is based.  It is trite law that the failure to cite the provisions under which an application is brought is not fatal.  A careful perusal of the provisions of Order L rule 12 of the Civil Procedure Rules indicates that the defect should be overlooked.

The more serious allegation is the averment that the motion is resjudicata.  It is said a similar application dated 29th August 2005 was filed, heard and dismissed on 9th October 2007.  This contention is not controverted.   It is true that Mwobe Gathute through the firm of Macharia Muraguri Advocates filed the Notice of Motion dated 29th August 2005 in which he sought for an order to set aside the judgment of 17th March 1999 by an order of review.  The motion was heard by Lady Justice Mary Kasango who dismissed the motion on merits on 9th October 2007.  No appeal has been preferred against the dismissal order.  I am convinced that the motion before Court is resjudicata.

In any case the motion does not contain the grounds it is based contrary to the express requirements of Order L rule 3 of the Civil Procedure Rules.   It is obvious that the motion is for dismissal on the basis of the above reasons.  Consequently the motion is hereby struck out and dismissed with no order as to costs.

Dated and delivered this 1st day of December 2009.

J. K. SERGON

JUDGE

In open court in the absence of the parties with notice.