[2019] KEELC 1139 (KLR)
The court found that a previous application seeking similar relief had already been filed and determined on its merits, resulting in dismissal on 23rd February, 2018. The current application, seeking to set aside the same dismissal order and reinstate the suit, was therefore held to be res judicata. The court...
Source-derived case information.
- Citation
- [2019] KEELC 1139 (KLR)
- Parties
- Plaintiff: Nancy Wairimu Njau; Plaintiff: Geoffrey Njau Mungai; Defendant: Joseph Okemwa Ontweka; Defendant: Dickson Ngechu Gatongo; Defendant: Mrs. Michael Njuguna
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 75 of 2009
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application dismissed except for leave for new advocates to come on record.
- Judges
- OA Angote
- Legal Topics
- Dismissal for Non Attendance, Reinstatement of Suit, Res Judicata, Application to Set Aside Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Wairimu Njau
Plaintiff
Geoffrey Njau Mungai
Plaintiff
Joseph Okemwa Ontweka
Defendant
Dickson Ngechu Gatongo
Defendant
Mrs. Michael Njuguna
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal order dated 21st February, 2018 should be set aside and the suit reinstated.
- 2 Whether the current application is res judicata in light of a previous similar application.
- 3 Whether the Plaintiffs have provided sufficient explanation for the delay in seeking reinstatement.
Ratio Decidendi
The court found that a previous application seeking similar relief had already been filed and determined on its merits, resulting in dismissal on 23rd February, 2018. The current application, seeking to set aside the same dismissal order and reinstate the suit, was therefore held to be res judicata. The court emphasized that once a matter has been conclusively determined between the same parties, it cannot be re-litigated. As such, except for the prayer seeking leave for the new advocates to come on record, the application was dismissed with costs.
Court Disposition
Application dismissed except for leave for new advocates to come on record.
Orders
- Leave is granted to the firm of M/S Guantai & Associates to come on record for the Plaintiffs in place of M/S M. Mutinda & Associates.
- The application dated 25th February, 2019 is otherwise dismissed with costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 75 OF 2009
NANCY WAIRIMU NJAU.............................1ST PLAINTIFF
GEOFFREY NJAU MUNGAI ......................2ND PLAINTIFF
VERSUS
JOSEPH OKEMWA ONTWEKA...............1ST DEFENDANT
DICKSON NGECHU GATONGO..............2ND DEFENDANT
MRS. MICHAEL NJUGUNA......................3RD DEFENDANT
RULING
1. In the Notice of Motion dated 25th February, 2019, the Plaintiffs are seeking for the following orders:
a. That leave be granted to the firm of M/S Guantai & Associates to come on record in this matter in place of the firm of M/S M. Mutinda & Associates for the Applicants.
b. That the dismissal order dated 21st February, 2018 be set aside and the suit herein be reinstated.
c. That this Honourable Court be pleased to set aside its orders dated 23rd February, 2018 dismissing the Plaintiff’s suit for want of attendance.
d. That this Honourable Court does make any other or such further orders as it may deem fit, just and expedient to make.
e. That the costs of this Application be in cause.
2. The Application is supported by the Affidavit of the 1st Plaintiff who has deponed that she had instructed the firm of M. Mutinda & Associates to act for her in this matter; that on 21st March, 2017, she went to court with her then advocate for the hearing of this matter and that on arrival, they were informed that this matter had been erroneously listed for hearing on 21st February, 2017 instead of 21st March, 2017 when it was dismissed for want of attendance.
3. According to the 1st Plaintiff, all along, he believed that his advocate had filed an Application to reinstate the suit as promised; that when he realized his then advocate had not filed the Application for reinstatement of the dismissed suit, he instructed his current advocate to file the current Application and that the suit was dismissed due to someone else’s in action.
4. The Plaintiffs previous advocate swore an Affidavit in which he deponed that this matter was fixed for hearing on 21st March, 2017; that he later on learnt that the matter had been listed for hearing on 21st February, 2017 and dismissed for want of prosecution and that the dismissal of this matter was not due to his fault or his clients but the court officers.
5. The Defendants’ advocate filed a Preliminary Objection, Grounds of Opposition and a Replying Affidavit. In the Preliminary Objection and Grounds of Opposition, the Defendants averred that the orders sought to be set aside have not been annexed on the Application.
6. In the Replying Affidavit, the 1st Defendant deponed that the suit will not serve any purpose even if reinstated because the suit was filed out of time and without the leave of the court and that no reasonable explanation has been given as to why the Applicants were indolent in filing their Application for more than one (1) year after it was dismissed for want of prosecution. None of the parties filed written submissions.
7. I have perused the court file and noted that an Application dated 22nd March, 2017 which is similar to the current Application, was filed by the Plaintiffs’ former advocates on 23rd March, 2017. The Application was dismissed by the court on 23rd February, 2018.
8. Having heard the Notice of Motion dated 22nd March, 2017 on merit, I find that the current Application is res judicata. On that ground alone, except for ground number 1, the Application dated 25th February, 2019 is dismissed with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 18TH DAY OF OCTOBER, 2019.
O.A. ANGOTE
JUDGE