[2018] KEHC 2137 (KLR)
The court held that since the plaintiff's suit was dismissed with costs on 9th March 2016 and no order had been made to reinstate it, there was no suit pending before the court. Consequently, all subsequent applications, including the substitution of the deceased plaintiff and the orders obtained on 30th July 2018,...
Source-derived case information.
- Citation
- [2018] KEHC 2137 (KLR)
- Parties
- Plaintiff: Benson Mangate Barasa; Defendant: Amos Wabwire
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 54 of 2014
- Procedural Posture
- Environment and Land Case / Ruling on Application to Set Aside Dismissal, Review Orders, and Reinstate Suit
- Outcome
- application struck out
- Legal Topics
- Dismissal of Suit, Reinstatement of Suit, Substitution of Parties, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Mangate Barasa
Plaintiff
Amos Wabwire
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Set Aside Dismissal, Review Orders, and Reinstate Suit
Legal Issues
- 1 Whether the suit, having been dismissed on 9th March 2016, could be reinstated or revived by subsequent applications.
- 2 Whether orders obtained after dismissal, including substitution of parties and taxation of costs, were valid.
- 3 Whether the application for review, stay, and setting aside of previous orders was competent in the absence of a pending suit.
Ratio Decidendi
The court held that since the plaintiff's suit was dismissed with costs on 9th March 2016 and no order had been made to reinstate it, there was no suit pending before the court. Consequently, all subsequent applications, including the substitution of the deceased plaintiff and the orders obtained on 30th July 2018, were made in a non-existent suit and were therefore invalid. The court further found that the orders obtained without disclosure of the dismissal amounted to a fraud on the court and must be vacated. As there was no suit or plaintiff before the court, the application dated 13th May 2018 was incompetent and was struck out with no order as to costs.
Court Disposition
application struck out
Orders
- The Notice of Motion dated 13th May 2018 is struck out with no order as to costs.
- Orders obtained on 30th July 2018 substituting the plaintiff are vacated.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT & LAND CASE NO.54 OF 2014
BENSON MANGATE BARASA..............PLAINTIFF
VERSUS
AMOS WABWIRE.................................DEFENDANT
RULING
The record herein shows that on 9th March 2016 MUKUNYA J dismissed the plaintiff’s suit with costs to the defendant.
I have perused the record and I do not see any order reinstating the dismissed suit.
Subsequent to that, there have been several applications in this matter. These are:
1. Application dated 8th November 2016 which sought, among others prayer, the setting aside of the dismissal order dated 9th March 2016. That application was withdrawn on 13th December 2017 with no order as to costs.
2. Application dated 10th January 2018 seeking to substitute the deceased plaintiff with one JOSEPH BARASA. That application was not opposed and was allowed on 30th July 2018.
I now have before me the application by the said JOSEPH BARASA seeking various prayers:
1. The Notice to show cause issues by the defendant and dated 12th August 2016 be set aside.
2. Stay of execution.
3. The ruling by MUKUNYA J dated 9th March 2016 be reviewed or set aside.
4. The consent entered before the Deputy Registrar on 10th March 2016 taxing the bill of costs at Ksh.140,000 be set aside and the plaintiff be granted leave to challenge it.
5. This suit be reinstated to full hearing.
6. Leave be granted to the plaintiff to change advocates to KHAMINWA & KHAMINWA ADVOCATES from WAFULA WACHANA ADVOCATES.
The application is opposed and PAUL KASSIM SIFUNA filed a replying affidavit describing it as frivolous, vexatious, scandalous and an abuse of the process of the Court, that a consent on the bill of costs had been recorded herein between the deceased plaintiff and defendant at Ksh.140,000 and a stay of execution granted for 45 days and that in any event this suit is res judicata.
The application has been canvassed by way of written submissions filed both by the firm of KHAMINWA & KHAMINWA ADVOCATES for the plaintiff and KASSIM SIFUNA ADVOCATES for the defendant.
I have considered the application and the submission by Counsel. I have also perused the record herein.
As I have already indicated at the commencement of this ruling, on 9th March 2016, MUKUNYA J delivered a ruling striking out with costs the plaintiff’s suit. That order has never been vacated reviewed or appealed to-date. It follows therefore that there is no suit pending in this case upon which an application can be founded. Indeed when an application by the plaintiff dated 10th January 2018 was placed before the late JUSTICE MUKUNYA on 11th January 2018 and although he advised the parties to take a date in the Registry, he also make the following orders in paragraph three(3):
“1.
2.
3. There is no suit pending.”
When the parties appeared before me on 27th June 2018 and again on 30th July 2018, they did not disclose that this suit had infact been struck out some two (2) years earlier. The plaintiff therefore fraudulently obtained orders on 30th July 2018 on a non-existent suit.
Surprisingly, Counsel for the defendant did not raise that issue and neither did Counsel for the plaintiff. As Officers of the Court, Counsel have a duty to assist the Court in dispensing justice fairly.
It is clear therefore that this suit having been struck out on 9th March 2016, there was no suit in which JOSEPH BARASA could be substituted as he purported to do when he filed the application dated 10th January 2018 and obtained orders to that effect on 30th July 2018. Those orders having been obtained without disclosing that this suit had been struck out are hereby vacated. And those orders having been vacated, there is no basis upon which the Notice of Motion dated 13th May 2016 can be considered because not only is there no suit but there is also no plaintiff to move the Court.
The up-shot of the above is that the Notice of Motion dated 13th May 2018 is struck out with no order as to costs.
BOAZ N. OLAO
JUDGE
22ND NOVEMBER 2018
Ruling delivered, dated and signed in open Court this 22nd day of November 2018 at Bungoma.
Mr. Onkangi for Mr. Khaminwa for Applicant – present
Mr. Wekesa for Mr. Kassim Sifuma for Respondent – present
BOAZ N. OLAO
JUDGE
22ND NOVEMBER 2018