[2023] KEELC 17913 (KLR)

Mwakae v Ong’era & 14 others (Environment & Land Case 92 of 2021) [2023] KEELC 17913 (KLR) (13 June 2023) (Ruling)

Neutral citation: [2023] KEELC 17913 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyamira

Environment & Land Case 92 of 2021

JM Kamau, J

June 13, 2023

Between

Shadrack Nyaberi Mwakae

Plaintiff

and

David M. Omoganda Ong’era

1st Defendant

Benedicto Charana Ongaro

2nd Defendant

Beresi Ouro

3rd Defendant

Omanwa Atera

4th Defendant

Siro Nyambori

5th Defendant

Ogechi Isoe

6th Defendant

Ouro Moitai

7th Defendant

Naumi Gesare Okinyi

8th Defendant

Henry Nyakundi Mose

9th Defendant

Grace Gilbert

10th Defendant

Benedicto Gichana Ooko

11th Defendant

Kenyatta Ooko

12th Defendant

Maisiba Ooko

13th Defendant

Rosana Ooko

14th Defendant

Siro Ombori

15th Defendant

Ruling

1In an Application dated March 1, 2023 the Defendant/Applicant prays for orders that this court do set aside its orders of February 20, 2023 dismissing the Motion dated November 21, 2022 and reinstate the same for Hearing and determination. The grounds upon which the Application is brought are that the same was not heard due to power outage and which therefore occasioned counsel for the Defendants/ Applicants not to attend court. In the Supporting Affidavit of One Japhet Osoro Kaosa, Counsel for the Defendants, the Defendant says that there was power outage and lack of connectivity which made the court dismiss the Defendants’ application dated November 21, 2022. This, he says was not anybody’s mistake. He says in paragraph 8 of the said Affidavit:That failure to attend court was not the Counsel for the Defendants’/Applicants’ mistake rather the same was occasioned by failure of power and network system on the side of the court.”

2The application is opposed vide a Replying Affidavit of Stephen Kimaiyo, Advocate for the Plaintiff/Respondent who cannot understand why Counsel for the Applicant and/or his clients did not attend court whether there was power failure or not.

3The Application for extension of time dated November 21, 2022 that was dismissed on February 20, 2023 results from an order of stay of execution that was made on August 25, 2022 giving the Defendants 30 Days within which to deposit in court original Title Deeds in respect of Title Nos WEST MUGIRANGO/BOSAMARO / 1468, 1469, 2248, 2249, 2250 and 2251. This was not done. Time expired on 25/09/2022. The Defendant then waited for another 2 months to seek for the extension of time. The same came up for Hearing on February 22, 2023. On the Hearing date the matter was called out at 9. 00am. and placed aside to await counsel. At 11. 35am, more than 2 ½ hours later only Mr Kimaiyo for the Respondent was in court. It takes only less than an hour to travel from Kisii, where Mr Osoro says he was, to Nyamira where the court is located. I do not see any good reason for the Advocate not to have been in court by 11. 35am. In any case the matter was to be heard in open court at 9. 00am. and I don’t therefore understand how power failure comes in. Again it took the Defendants up to March 2, 2023 to file the Application for reinstatement of the dismissed Application. It is also on record that on a number of occasions in this matter, the same Advocate has failed to turn up in court at times accusing the court of misleading him on dates.

4In his letter dated February 22, 2023, he still places the blame on the court claiming that…….we asked to be heard virtually and it took too long to inform us that there was a power outage and there were challenges in the teams link. My first request for virtual hearing was at 8. 44a.m……….and the last request at 10. 45a.m. and at 11. 03a.m. we received communication from Machira Joyce that the Honorable Judge was to proceed physically……” I further requested that since there were challenges in the online, we could be comfortable if the matter could be taken out and new dates taken……”

5It is quite unfortunate that Counsel chooses to call court staff dictating to them to tell the court to take the matter out of the Hearing list and give it another date. This is irresponsible advocacy. There was enough time from the time the file was placed aside at 9. 00a.m. to 11. 35a.m. when the same was called out again and Counsel only has himself to blame and not the court. If what Counsel says is true that there was power outage he should have made arrangements to come physically to court. Whereas we agree with him that online court sessions are acceptable, where this is not practical then Counsel should attend court physically.

6Having said so, this is an Application where the court has discretion to decide either way. Although the Applicants are undeserving of the prayers sought the court will allow the Application but caution Counsel to take court more seriously. The throw away costs of the Application in the sum of Kshs 7,500/= shall be awarded to the Plaintiff/Respondent payable within the next 7 days from the date hereof.

RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 13TH DAY OF JUNE 2023. MUGO KAMAUJUDGEIn the Presence of: -Court Assistant SibotaPlaintiff: Mr. KimaiyoDefendants: N/A