[2024] KEELC 6553 (KLR)

Ngaine v Land Adjudication and Settlement Officer, Igembe District & 2 others (Environment and Land Judicial Review Miscellaneous Application 14 of 2014) [2024] KEELC 6553 (KLR) (2 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6553 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment and Land Judicial Review Miscellaneous Application 14 of 2014

CK Nzili, J

October 2, 2024

Between

Stanely Ngaine

Applicant

and

Land Adjudication and Settlement Officer, Igembe District

1st Respondent

Kaberia M’mucheke

2nd Respondent

Peter Kabira

3rd Respondent

Ruling

1. The application dated 15. 5.2024 is brought under Article 159 of the Constitution, Sections 1A, 1B, 3A, 63(e) and 65(1)(b) of the Civil Procedure Act, Orders 50 and 12 Rule 7 of the Civil Procedure Rules. The applicant prays for the court to set aside or vacate the orders of 31. 8.2020 and reinstate the primary notice of motion for hearing.

2. The grounds are on the face of the motion and further grounds are adduced in the affidavit sworn on even date by Mr. Kurauka, advocate for the applicant. It is stated that the applicant was granted leave to file for judicial review orders, and the same was to act as a stay. Parties were absent when the matter was dismissed; the said orders were an error apparent on the record as parties were waiting for a judgment date.

3. Further, it is averred that counsel for the applicant had closed his chambers at the time due to the Covid-19 pandemic, when the orders were issued and that the court had issued directions for the parties to file written submissions and await a judgment date.

4. Similarly, the counsel for the applicant avers that despite numerous correspondence to the Deputy Registrar to confirm the file status, the same was not filed since the court file had been missing and that he only learned of the status through the online Court Tracking System showing the various dates when the matter was in court before the file was transferred to Nkubu registry.

5. Learned counsel also avers that the mistake should not be visited on the applicant since there would be no prejudice to be occasioned on the respondents; the applicant shall suffer irreparable loss and damage and that he was now willing to prosecute the matter expeditiously.

6. Notwithstanding a return of service, the respondents are yet to file their responses. Bearing in mind the age of this matter, it is most prudent to lay a background leading to the instant application. From the record, the ex-parte applicant filed a notice of motion dated 12. 5.2014, seeking to apply for judicial review orders which leave was subsequently granted on 14. 5.2014 and was to act as stay.

7. The main motion dated 21. 5.2014 was filed on 28. 5.2014, the matter was mentioned severally, and on 11. 6.2015, it was stood over generally and parties were directed to seek a mutually convenient date for directions. Come 2. 3.2017, counsel for the applicant took a ruling date at the registry for ex-parte for 29. 5.2017, by which date parties were to have filed written submissions, which are on record.

8. Following several mentions, the matter was dismissed on 15. 11. 2018, when it came up for hearing, for non-attendance and want of prosecution. There is a return of service on record dated 4. 10. 2018 that the counsel on record had been served with the hearing notice through Express Mail Service.

9. The applicant then filed an application dated 23. 5.2019, seeking to have the main motion reinstated and a ruling date. On 10. 2.2020, the applicant was given a very last chance to serve the respondents with a hearing notice in default of which, the suit was to stand dismissed. A hearing date was given for 11. 5.2020.

10. There was inaction until the matter came up in court on 31. 8.2020 when the application dated 23. 5.2019 was dismissed for non-attendance and want of prosecution. There is evidence that the counsel for the applicant had been duly served with a cause list through his email, wakilikurauka@gmail.com, for the service week running from 31. 8.2020 to 4. 9.2020. The same is not disputed.

11. In the instant application, the applicant has not disclosed that the main motion had been dismissed, as well as an application for its reinstatement.

12. The discretion to recall set aside orders of this court is wide. In CMC Holdings Ltd vs Nzioki [2004] 1 KLR 1, while stating the principles requisite for setting aside, the court held;“That discretion must be exercised upon reasons and must be exercised judiciously. In law, the discretion that a court of law has in deciding whether or not to set aside exparte orders was meant to ensure that a litigant does not suffer injustice or hardship as a result of, amongst others, an excusable mistake or error. It will not be a proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error”.

13. Other than claims of the Covid-19 pandemic, counsel has not attached the alleged emails to the Deputy Registrar enquiring on the status of the matter or correspondence that the file was missing. He alleges that the matter was dismissed in the absence of the parties, but the record shows Mr. Kiongo advocate was present for the respondents. The applicant does not dispute the email used to communicate the hearing date.

14. There is no error apparent on the record to warrant the orders sought. The applicant and his counsel have been in slumber and seem to have woken up after more than four years.

15. Be that as it may and in the interest of justice, I shall reinstate the application dated 23. 5.2019 for hearing on merits. There will be no costs to the respondent.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 2ND DAY OF OCTOBER, 2024. In presence ofC.A KananuKurauka for exparte applicantHON. C K NZILIJUDGE