[2022] KEELC 2454 (KLR)
The court found that the application to set aside the notice of withdrawal of proceedings and the consequential order was meritorious, as the supporting affidavit by the County Attorney was uncontroverted and the application was not opposed by any of the respondents. The court held that orders made without proper...
Source-derived case information.
- Citation
- [2022] KEELC 2454 (KLR)
- Parties
- Applicant: Nairobi City Council (Now being Nairobi City County Government); Respondent: Commissioner of Lands; Respondent: Gamex Shelter Hunters Limited; Respondent: Muthithi Investments Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2021
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- Application allowed; notice of withdrawal and consequential order set aside; matter to proceed to trial.
- Judges
- LC Komingoi
- Legal Topics
- Withdrawal of Proceedings, Setting Aside Orders, Representation of Parties, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nairobi City Council (Now being Nairobi City County Government)
Applicant
Commissioner of Lands
Respondent
Gamex Shelter Hunters Limited
Respondent
Muthithi Investments Limited
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the notice of withdrawal of proceedings filed by M/S Wambugu & Muriuki Advocates on behalf of the plaintiff should be set aside as null and void.
- 2 Whether the court should proceed with the fair trial and determination of the plaintiff's pending notice of motion as originally scheduled.
Ratio Decidendi
The court found that the application to set aside the notice of withdrawal of proceedings and the consequential order was meritorious, as the supporting affidavit by the County Attorney was uncontroverted and the application was not opposed by any of the respondents. The court held that orders made without proper authority or representation on behalf of a party may be set aside to ensure procedural fairness. Consequently, the court granted the orders sought in prayers 3 and 4 of the notice of motion, setting aside the notice of withdrawal and the consequential order, and directed that the matter proceed to fair trial and determination as originally scheduled.
Court Disposition
Application allowed; notice of withdrawal and consequential order set aside; matter to proceed to trial.
Orders
- The Notice of Withdrawal of Proceedings dated 14th February 2022 and the order adopted and made thereon dated 15th February 2021, purportedly on behalf of the plaintiff, are set aside, vacated, and held to be null and void together with all consequential orders thereon.
- The court shall proceed with the fair trial and determination of the plaintiff's pending notice of motion as originally scheduled.
Full Case Text
Judgment text and source record
28 paragraphs
Nairobi City Council (Now being Nairobi City County Government) v Commissioner of Lands & 2 others (Environment & Land Case 5 of 2021) [2022] KEELC 2454 (KLR) (14 July 2022) (Ruling)
Neutral citation: [2022] KEELC 2454 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 5 of 2021
LC Komingoi, J
July 14, 2022
Between
Nairobi City Council (Now being Nairobi City County Government)
Applicant
and
Commissioner of Lands
1st Respondent
Gamex Shelter Hunters Limited
2nd Respondent
Muthithi Investments Limited
3rd Respondent
Ruling
1. This is the Notice of Motion dated 23rd March 2022 brought under sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya, and Order 51 rule 1 of the Civil Procedure Rules2010 and all other enabling provisions of the law.
2. It seeks orders:-1. Spent.2. Spent.3. That the Notice of Withdrawal of Proceedings dated 14th February 2022, lodged in these proceedings by M/S Wambugu & Muriuki Advocates and the order adopted and made there on dated 15th February 2021 purportedly on behalf of the Plaintiff herein be set aside, vacated, and held to be null and void together with all consequential orders thereon secured by M/S Wambugu & Muriuki Advocates.4. This honourable court be pleased to proceed with the fair trial and determination of the Plaintiff pending notice of motion dated 25th June 2020 as originally scheduled.5. Such expedient directions do issue on the further prosecution of the matter herein.6. Costs abide the outcome of the suit herein.
3. The grounds are on the face of the application and are set out in paragraphs 1 to 19 of the Notice of Motion.
4. The application is supported by the affidavit of Lydia Kwamboka, the Plaintiff’s County Attorney, sworn on the March 23, 2022.
5. The notice of motion is not opposed. When the matter came up on the June 9, 2022to confirm filing of submission’s, Ms Fatma for the 1st Defendant/Respondent informed the court that they did not wish to oppose the notice of motion. Mr. Obuya for the 3rd Defendant/Respondent also informed the court that the 3rd Defendant/ Respondent did not wish to participate in the notice of motion.
6. I have gone through the supporting affidavit of Lydia Kwamboka, County Attorney for the Plaintiff, in particular paragraphs 6, 13, 15, and 16.
7. The said averments have not been controverted as the application is not opposed.
8. I find merit in the notice of motion dated March 23, 2022 and I grant orders in terms of prayers 3 and 4 of the Notice of Motion.
It is so ordered.
DATED, SIGNED AND DELIVERED NAIROBI THIS 14TH DAY OF JULY 2022. ……………………….L. KOMINGOIJUDGEIn the presence of:-Mr. H. Kinyanjui for the PlaintiffMs Fatma for the 1st DefendantNo appearance for the 2nd DefendantMr. Obuya for the 3rd DefendantSteve - Court Assistant