[2018] KEELC 1860 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KISUMU

ELC. NO. 59 OF 2017 (FORMELY CIVIL SUIT NO. 59 OF 2012)

JOHN ROBERT MCTOUGH.......................................................PLAINTIFF

VERSUS

WILLIAM ROMAN MC TOUGH.....................................1ST DEFENDANT

AIRPORT HOUSING CO-OPERATIVE SACCO............1ST DEFENDANT

COMMISSIONER OF LANDS..........................................3RD DEFENDANT

REGISTRAR OF TITLES..................................................4TH DEFENDANT

RULING

1. John Robert Mctough, the Plaintiff, filed the notice of motion dated 13th May 2016 seeking to have the order of 11th May 2016 dismissing the suit for want of attendance and reinstating of the suit for hearing. The application is based on the three (3) grounds on its face; that the Plaintiff and his advocate knew the hearing was for 20th May 2016 and not the 12th May 2016; that the Plaintiff and his advocate had attended the court on all previous dates and that the application has been brought without undue delay. The application is supported by the affidavit of Thomas Agimba, counsel for the Plaintiff, sworn on the 13th May 2016 among other deponing that his clerk had erroneously indicated the hearing date as 20th May 2016 instead of 12th May 2016.

2. The application is opposed by William Roman Mctough, the 1st Defendant, through the grounds of opposition dated 28th July 2016.

3. The application came up for hearing on the 13th July 2016 when directions on filing and exchanging written submissions were given. The learned counsel for the Commissioner of Lands and the Registrar of titles, the 3rd and 4th Defendants, indicated that they would not participate in the hearing of the application. Consequently, the counsel for the Plaintiff, 1st and 2nd Defendant filed their written submissions dated 25th July 2016, 12th August 2016 and 19th August 2016 respectively.

4. The following are the issues for court’s determinations;

a) Whether the Plaintiff has established a reasonable cause why he did not attend the hearing on the 12th May 2016 when the order dismissing the suit was issued.

b) Who pays the costs of the application.

5. The court has carefully considered the grounds on the notice of motion, the affidavit evidence, grounds of opposition, written submissions and come to the following determination;

a) That as accepted by counsel for the Plaintiff, the hearing of 12th May 2016 had been fixed by his representative and that of counsel for the 1st Defendant on the 9th December 2015.

b) That the failure to attend court on the 12th May 2016 by the Plaintiff and his advocate has been clearly explained through the supporting affidavit by counsel, and the explanation is reasonable and is accepted.

c) That as the counsel for the 1st and 2nd Defendant had attended court on the 12th May 2016, they are entitled to thrown away costs to be determined by the court.

6. The Plaintiff’s notice of motion dated 12th May 2016 has merit and is allowed in the following terms;

a) That the order of 12th May 2016 dismissing the suit for non- attendance is hereby set aside and the suit reinstated.

b) That the Plaintiff do pay the 1st and 2nd Defendants Kshs. 5000/= (Five thousands) each as thrown away costs.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE

DATED AND DELIVERED THIS 26th DAY OF September 2018

In the presence of:

Plaintiff Absent

Defendants Absent

Counsel Mr. Onyango for 2nd Defendant and holding brief for Odeny for 1st Defendant.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE