Yego v Kibiwott & another [2023] KEELC 21164 (KLR)

Yego v Kibiwott & another (Environment and Land Appeal 11 of 2022) [2023] KEELC 21164 (KLR) (30 October 2023) (Judgment)

Neutral citation: [2023] KEELC 21164 (KLR)

Republic of Kenya

In the Environment and Land Court at Iten

Environment and Land Appeal 11 of 2022

L Waithaka, J

October 30, 2023

Between

Christopher Kimaiyo Yego

Appellant

and

Jacob Kibet Kibiwott

1st Respondent

Mark Kipkosgei Kipron

2nd Respondent

Judgment

1. On 23rd March 2021, Hon. Kutwa SPM dismissed the appellant’s suit to wit Iten SPMC (MCE & L) No. 17 of 2018 on the ground that the plaintiff/appellant had failed to adhere to comply with an order issued by the court requiring him to prosecute the suit within 45 days.

2. Aggrieved by the order of the Learned Trial Magistrate, the plaintiff appealed to this court on seven grounds that can be reduced to one broad ground namely that the Learned Trial Magistrate erred by dismissing his suit when the circumstances of the case did not warrant such action.

3. Pursuant to directions given on 19th June, 2023 that the appeal be disposed off by way of written submissions, parties filed submissions which submissions, I have read and considered.

4. A review of the court record shows that no order was made by the Learned Trial Magistrate on 26th February, 2020 requiring the plaintiff to prosecute the suit within 45 days. The record shows that on that day, the Learned Trial Magistrate dismissed the plaintiff’s suit for want of prosecution. In so doing, the Learned Trial Magistrate observed that the plaintiff had earlier on been given 45 days to prosecute his case, which order he failed to comply with.

5. The court record further shows that the plaintiff made an application for setting aside of the order and reinstatement of the suit. The application was allowed on 28th May, 2020. The order for reinstatement of the suit did not have timelines within which the suit ought to have been prosecuted.

6. From the foregoing facts, it is clear that the order of 23rd March 2021 was not supported by the facts of the case.

7. Whereas the Learned Trial Magistrate had discretionary power to make the order he made, that power has to be exercised judiciously. Judicious exercise of that power is demonstrated by inter alia giving valid reason or reasons for actions or decision made.

8. In the circumstances of this case, where the order of the court was premised on the wrong impression that there existed an order requiring the plaintiff to prosecute the case within 45 days, I find the reason given by the Learned Trial Magistrate to be erroneous hence incapable of forming the basis of the order appealed from.

9. The upshot of the foregoing is that the plaintiff/appellant has made up a case for setting aside the order made on 23rd May 2023 dismissing the plaintiff’s suit with costs. Consequently, I set aside the order made on 23rd May 2023 dismissing the plaintiff’s/appellant’s suit with costs and I reinstate the suit.

10. The suit shall be heard by a different Magistrate other than Hon. Kutwa.

11. Since the error giving rise to the appeal is attributable to the Learned Trial Magistrate, I order that each party shall bear their costs of the suit.

12. Orders accordingly.

DATED, SIGNED AND DELIVERED, AT ITEN THIS 30TH DAY OF OCTOBER, 2023. L. N. WAITHAKAJUDGEJudgment read virtually in the presence of:-No appearance for the appellantMs Cherop holding brief for Mr. Kiplagat for the respondentChristine – Court Assistant