[2021] KEELC 4545 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MAKUENI

ELC CASE NO. 151 OF 2017

JOSEPH MWANGANGI MUUNDA..............PLAINTIFF/RESPONDENT

-VERSUS-

STEPHEN NDOO MUINDI......................1ST DEFENDANT/APPLICANT

ANNA MUINDI MUTHAMA..................2ND DEFENDANT/APPLICANT

RULING

1. The application for determination is dated 17th September, 2020 filed by the Defendants/Applicants under certificate of urgency. It is brought under Order 45 Rule 1 of the Civil Procedure Rules, 2010.

2. The Applicants seek the following Orders:

i)Spent.

ii)Spent.

iii)That the Judgment delivered on 26th November, 2018 by Honourable Justice Mbogo C.G. be reviewed and or set aside.

3. The application is supported by the affidavit of Stephen Ndoo Muindi sworn on 17th September, 2020 on his behalf and that of his Co-defendant. The basis of the application is that there are apparent errors on the face of the record and that those errors are prejudicial to the Defendants.

4. The Plaintiff/Respondent has opposed the application vide the grounds of opposition dated 14th October, 2020. He argues that there has been an inordinate delay in bringing the application herein and that such delay has not been explained. He also argues that the application is misconceived and an abuse of court process.

5. Both parties filed their respective submissions. In their submissions dated 19th November, 2020, the Applicants reiterated that there are sufficient reasons to warrant grant of review orders against the judgment dated 26th November, 2018. No case law has been cited in support thereof. The Defendants/Applicants pray that the application be allowed as prayed.

6. In the Plaintiff’s/Respondent’s submissions dated 22nd October, 2020, three issues have been formulated for determination by this Court. These are;

i) whether the Applicants have established sufficient cause for the orders to be granted,

ii) whether the Applicants’ counsel is properly on record and

iii) whether there has been inordinate delay in filing the application hereof.

7. I have perused the parties’ respective pleadings. I am cognizant of the fact that I delivered a Ruling herein dated 19th February, 2018 dismissing the Defendants’ application dated 28th June, 2013. The said application was dismissed on the grounds that Messrs. R.A. Ochuru & Co. Advocates herein for the Defendants had not obtained leave of court to come on record in place of Messrs. Mwania Mbithi & Co. Advocates long after interlocutory judgment had been entered on or about 8th May, 2012.

8. Order 9 Rule 9 of the Civil Procedure Rules, 2010 is predicated in mandatory terms. It sets out as follows:

“When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court-

(a) upon an application with notice to all the parties; or

(b) upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be.”

9. It is unfortunate that the firm of Messrs. R.A. Ochuru & Co. Advocates has not taken the necessary interventions to cure the above defect in the Defendants’ case. I cannot therefore address any of the prayers sought in this application.

10. The upshot of the foregoing is that the application is an abuse of court process and is hereby struck out with costs.

Signed, dated and delivered at Makueni via email this 29th day of January, 2021.

..............................

MBOGO C.G.

JUDGE

Court Assistant: Mr. Kwemboi