[2020] KEELC 2901 (KLR)
The court found that the Notice of Withdrawal of Suit was filed by a law firm (M/s Obara & Obara Advocates) that was not on record for the applicant in this matter, but for a different party in a separate suit. The notice also referenced the wrong case number. As such, the law firm had no authority to file the...
Source-derived case information.
- Citation
- [2020] KEELC 2901 (KLR)
- Parties
- Plaintiff: Joel Titus Musya; Defendant: Joash Adamba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 387 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review and Reinstatement of Suit
- Outcome
- application allowed; suit reinstated
- Legal Topics
- Adverse Possession, Withdrawal of Suit, Joinder of Parties, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Titus Musya
Plaintiff
Joash Adamba
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Review and Reinstatement of Suit
Legal Issues
- 1 Whether the Notice of Withdrawal of Suit was validly filed by an advocate properly on record for the applicant.
- 2 Whether the suit should be reinstated after being marked as withdrawn based on a notice filed by a law firm not representing the applicant.
Ratio Decidendi
The court found that the Notice of Withdrawal of Suit was filed by a law firm (M/s Obara & Obara Advocates) that was not on record for the applicant in this matter, but for a different party in a separate suit. The notice also referenced the wrong case number. As such, the law firm had no authority to file the notice on behalf of the applicant, and the withdrawal was therefore invalid. The court set aside the previous order marking the suit as withdrawn and reinstated the suit, as the withdrawal was not properly effected according to the rules of procedure and representation.
Court Disposition
application allowed; suit reinstated
Orders
- The application dated 30 October 2019 is allowed.
- The orders of 29 October 2019 marking the suit as withdrawn are set aside.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MOMBASA
ELC NO. 387 OF 2017
JOEL TITUS MUSYA...................................................................PLAINTIFF
VERSUS
JOASH ADAMBA.......................................................................DEFENDANT
RULING
(Application to reinstate suit; suit marked as withdrawn pursuant to a notice of withdrawal of suit; notice filed by counsel not on record for the applicant; application allowed and suit reinstated)
1. The application before me is that dated 30 October 2019. It seeks orders for review of the orders made on 29 October 2019 and for the reinstatement of this suit.
2. To put matters into context, this suit was commenced through an Originating Summons filed on 23 October 2017 where the applicant sought orders that he be declared to have acquired title to the land parcel MN/I/3190 by way of adverse possession. The respondent entered appearance on 16 September 2018. On 8 February 2019, one Pamela Auma Ogola filed an application to be enjoined into the suit as an interested party. She contended that she is the one who has been in occupation of the suit land from the year 1998 and the one entitled to the land by way of adverse possession. On 30 January 2019, another application seeking joinder to the suit was filed by one Paul Ongidi Amolo. He also claimed that he is the one who has been in occupation of the suit land and the person entitled to the land by way of adverse possession. He disclosed in his application that he had filed his own suit being Mombasa ELC NO. 14 of 2019. On 19 March 2019, a similar application for joinder was filed by one Julius Ogogoh.
3. On 4 April 2019, there was filed a Notice of Withdrawal of Suit which stated that the applicant has wholly withdrawn/discontinued the suit.
4. When the matter came before me on 29 October 2019, and pursuant to the Notice of Withdrawal of Suit, I made the order that this suit is withdrawn and therefore the court file may be closed. It is this order which is sought to be reviewed.
5. It is the contention of the applicant that the Notice of Withdrawal of Suit was filed by M/s Obara & Obara Advocates, who are not on record for him, but on record for the plaintiff in the suit Mombasa ELC No. 14 of 2019. He has also pointed out that the notice indicates that it is for the suit Mombasa ELC No. 14 of 2019.
6. The application is not opposed.
7. I have looked again at the Notice of Withdrawal of Suit. It does cite the parties in this case but it mentions the case Mombasa ELC No. 14 of 2019. It is drawn by the law firm of M/s Obara & Obara Advocates, and I have confirmed from the record that the said law firm does not act for the applicant in this matter. The applicant is represented by the law firm of M/s Chala & Company Advocates. Given that position, the law firm of M/s Obara & Obara could not file a notice to withdraw this suit as they do not have instructions from the applicant. It is probable that the said law firm filed the notice of withdrawal of suit in the wrong file and cited the wrong parties as the said firm is on record for the applicant in the suit Mombasa ELC No. 14 of 2019.
8. In the circumstances, I do allow this application and set aside the orders of 29 October 2019 which marked this suit as withdrawn. The suit is thus reinstated.
9. I make no orders as to costs.
10. Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA this 3rd day of March, 2020.
______________
MUNYAO SILA,
JUDGE.
IN THE PRESENCE OF:
Ms Chala for the applicant.
No appearance for the other parties.
Court Assistant; David Koitamet.