Wilson Nato v Francis Simiyu Wekesa & Joseph Namasuka Nato [2013] KEHC 2888 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

ENVIRONMENT  CASE NO. 3 of 2013

WILSON NATO.........................……………..........……… PLAINTIFF

VERSUS

FRANCIS SIMIYU WEKESA..........……..…DEFENDANT/APPLICANT

AND

JOSEPH NAMASUKA NATO …..............APPLICANT/RESPONDENT

RULING

The applicant has filed an application dated 9th September 2010 which was argued and opposed before me.  In that application, the applicant asked for;

Reinstatement of the suit.

The plaintiff herein  Wilson Nato now deceased be substituted  and be  replaced by Joseph Namasuka Nato the applicant  herein.

That the L.P No. Bungoma/Kabisi/323 registered in the names of the  defendant be nullified, deregistered and or revoked.

That the L/.R. No.  No. Bungoma/Kabisi/323 be registered   in the names of the applicant Joseph Namasuka Nato.

Costs be provided for.

I have perused the court file and noted the following  from the records;

The applicant through  his advocate M/s Shitsama & Co.  filed an application on 17th June 1996 which sought to substitute Wilson Nato – deceased with Joseph Nato. This application  was allowed by consent on 28th June 1996.  Therefore  prayer (ii) for substitution was not proper as it was already granted.

The applicant filed an application through the same advocates on 13th January 1999 seeking to reconstruct the file as apparently the court file was missing. Before this application was prosecuted, the suit was dismissed on 26th July 2001 for want of prosecution.

The applicant then filed the application dated 9th September 2010.  This application was granted on 7th March 2012.  These were the  words of Justice S.J. Chitembwa sitting at Kakamega,

“I have seen death  certificate no. 404063, the application dated  9th September 2010 is granted as prayed.”

This application had  five prayers and one of them was reinstatement of the suit. The respondents were not happy with the orders granted by the judge and filed an application on 24th July 2012.  In that application, they are seeking to set aside the judge's orders of 7th March 2012.

Instead of arguing his application for setting aside, Counsel for the respondent entirely put arguments in opposition to the application of  9th September 2010.  This application in my view was spent by the judge's order of 7th March 2012 which allowed it as prayed.

Having  said this, there is nothing for me to write a ruling on.  The respondent  either takes a date for hearing  of his application dated 23rd July 2012 or the suit is treated as concluded given the terms of prayer 3 and 4 of the  application  granted on 7th March 2012.

I say no more.

RULING DATED, SIGNED, READ AND DELIVERED in open court this 10th day of June  2013.

A. OMOLLO

JUDGE.