[2017] KEELC 3048 (KLR)
The court held that since the suit had already been dismissed on 7th July, 2015, it was non-existent and could not be declared abated. The application for abatement was therefore unnecessary, as there was nothing left to abate. The court reaffirmed the dismissal and ordered the suit to be removed from the register...
Source-derived case information.
- Citation
- [2017] KEELC 3048 (KLR)
- Parties
- Plaintiff: Fredrick Mugo Mutegi Mutunga; Defendant: Edwin Muriithi Simon Mutegi alias Edwin Kenneth Murithi Mutegi & 6 others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 211 of 2017
- Procedural Posture
- Ruling / Application for Declaration of Abatement and Costs After Suit Dismissal
- Outcome
- Application dismissed as moot; suit remains dismissed.
- Legal Topics
- Abatement of Suit, Dismissal of Suit, Removal From Register
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Mugo Mutegi Mutunga
Plaintiff
Edwin Muriithi Simon Mutegi alias Edwin Kenneth Murithi Mutegi & 6 others
Defendant
Procedural Posture
Ruling / Application for Declaration of Abatement and Costs After Suit Dismissal
Legal Issues
- 1 Whether the suit should be declared abated after its dismissal.
- 2 Whether costs should be awarded for the application and the main suit.
Ratio Decidendi
The court held that since the suit had already been dismissed on 7th July, 2015, it was non-existent and could not be declared abated. The application for abatement was therefore unnecessary, as there was nothing left to abate. The court reaffirmed the dismissal and ordered the suit to be removed from the register of pending cases.
Court Disposition
Application dismissed as moot; suit remains dismissed.
Orders
- The suit remains dismissed.
- The suit should be removed from the register of pending cases.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 211 OF 2017
FORMERLY MERU ELC CASE NO.70 OF 2009
FREDRICK MUGO MUTEGI MUTUNGA…………………..................................PLAINTIFF
VERSUS
EDWIN MURIITHI SIMON MUTEGI ALIAS
EDWIN KENNETH MURITHI MUTEGI & 6 OTHERS…………………………………...DEFENDANTS
RULING
1. This application is dated 21st March, 2017 and seeks orders that:
1. This Honourable Court do declare the suit herein to have abated.
2. Costs of this application and the main suit be provided for.
2. The application is supported by the affidavit of Edwin Murithi Simon Mutegi, the 1st defendant, sworn on 21st March, 2017.
3. Charity Kaaria Mugo, who said that she was the administrator of the plaintiff’s estate, told the court that since her advocate was not in court, this matter should be allocated another hearing date.
4. I do not see the need for the application to be heard interpartes. This is because this suit was dismissed on 7th July, 2015 by the Hon. Justice Githinji, J. The suit having been dismissed is non existent. It remains dismissed.
5. Regarding abatement, one does not need to substantiate the obvious or to prove that which is pellucidly uncontrovertable.
6. I reaffirm that this suit remains dismissed. It should be removed from the register of pending cases.
7. It is so ordered.
Delivered in open court at Chuka this 4th day of April, 2017 in the presence of:
CA: Ndegwa
Charity Kaaria Mugo for the plaintiff
P. M. NJOROGE,
JUDGE.