[2022] KEELC 3326 (KLR)
The court found that the Defendant/Applicant had not demonstrated sufficient cause for the delay in bringing the application to reinstate the dismissed application. The delay of about three months was deemed inordinate and unexplained. Furthermore, the court noted that the defence on record contained admissions by...
Source-derived case information.
- Citation
- [2022] KEELC 3326 (KLR)
- Parties
- Plaintiff: Peter Githinji Ngubiru; Plaintiff: Samuel Njue Ngiriri; Plaintiff: Olanda Lordvicus Shibie Wameyo; Plaintiff: Francis Ng’ang’a Wanyoike; Defendant: Solomon Ireri Gachewa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 169 of 2013
- Procedural Posture
- Notice of Motion / Ruling on Application to Reinstate Dismissed Application
- Outcome
- application dismissed with costs to the plaintiffs
- Judges
- LC Komingoi
- Legal Topics
- Reinstatement of Application, Setting Aside Judgment, Delay in Prosecution, Non Attendance, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Githinji Ngubiru
Plaintiff
Samuel Njue Ngiriri
Plaintiff
Olanda Lordvicus Shibie Wameyo
Plaintiff
Francis Ng’ang’a Wanyoike
Plaintiff
Solomon Ireri Gachewa
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Reinstate Dismissed Application
Legal Issues
- 1 Whether the application to reinstate the dismissed application dated 2nd March 2021 is merited.
- 2 Whether the delay in bringing the present application is excusable.
- 3 Whether setting aside the judgment would serve any useful purpose in light of the defence on record.
Ratio Decidendi
The court found that the Defendant/Applicant had not demonstrated sufficient cause for the delay in bringing the application to reinstate the dismissed application. The delay of about three months was deemed inordinate and unexplained. Furthermore, the court noted that the defence on record contained admissions by the Defendant regarding execution of the sale agreements, and thus, setting aside the judgment or reinstating the application would not serve any useful purpose. The Plaintiffs were entitled to enjoy the fruits of their judgment, and the application lacked merit. Consequently, the application was dismissed with costs to the Plaintiffs.
Court Disposition
application dismissed with costs to the plaintiffs
Orders
- The application dated 10th January 2022 is dismissed with costs to the Plaintiffs.
Full Case Text
Judgment text and source record
40 paragraphs
Ngubiru & 3 others v Gachewa (Environment & Land Case 169 of 2013) [2022] KEELC 3326 (KLR) (9 June 2022) (Ruling)
Neutral citation: [2022] KEELC 3326 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 169 of 2013
LC Komingoi, J
June 9, 2022
Between
Peter Githinji Ngubiru
1st Plaintiff
Samuel Njue Ngiriri
2nd Plaintiff
Olanda Lordvicus Shibie Wameyo
3rd Plaintiff
Francis Ng’ang’a Wanyoike
4th Plaintiff
and
Solomon Ireri Gachewa
Defendant
Ruling
1. This is the Notice of Motion dated 10th January 2022 brought section 10 of the Judicature Act, rule 3(1) and (2) of the High Court (practice and procedure rules), Part III of the High Court (Organization and Administration) (General) Rules, 2016, section 3A, 3B of the Civil Procedure Act of 2010, order 42 rule 6 and order 12 rule 6 of the Civil Procedure Rules and all the other enabling provisions of the law.
2. It seeks orders:-a.Spent.b.That an order be and is hereby granted reinstating for purposes of being heard on merit the application dated 2nd March 2021 which was dismissed by the order of this honourable court issued on the 13th October 2021. c.Spent.d.Spent.e.That the cost of this application be granted.
3. The grounds are on the face of application and set out in paragraphs 1 to 14.
4. The application is supported by the affidavit of Solomon Ireri Gachewa, the Defendant/Applicant herein sworn on the 10th January 2022.
5. The application is opposed. There is a replying affidavit sworn by Peter Githinji Ngubiru, the 1st Plaintiff/Respondent sworn on the 9th February 2022.
6. It is the Defendant’s/Applicant’s case that he should be given an opportunity to ventilate his case. Further that a mistake of counsel ought not to be visited on a litigant.
7. The Plaintiffs/Respondents on the other hand contend that allowing the application will not serve any useful purpose in light of the defence filed. Further that the notice of motion dated 2nd March 2021 was dismissed for non attendance and that this application has been brought after inordinate delay.
8. I have considered the notice of motion and the affidavit in support. I have considered the affidavit in response and the oral submissions. The issue for determination is whether this application is merited.
9. I have gone through the court record. The same is clear. The Defendant has never been desirous of prosecuting his case. The Plaintiffs case was heard exparte after the same was confirmed for hearing at 11:30 a.m. on 1st October 2018 in the presence of counsel holding brief for Mr. Muriuki for the Defendant.
10. On the 1st November 2018 Mr. Ong’anda for the Defendant sought time so that parties could reach a settlement. On the 13th February 2019, parties sought more time to finalise on settlement.
11. On the 9th April 2019, the Defendant’s counsel sought more time for parties to reach a settlement.
12. On the 15th July 2019, Mr. Maosa stated that he had just come on record for the Defendant. The Defendant was given time to comply with Order 11 of the Civil Procedure Rules and the matter was set for mention on 14th May 2020.
13. On the 7th December 2020, there was no appearance for the Defendant and the matter was set down for judgment. Judgment was delivered on 18th February 2021.
14. On the 2nd March 2021 the Defendant/Applicant filed an application to set aside the judgment of 18th February 2021. The same was not prosecuted culminating in the dismissal on 13th October 2021.
15. The Defendant/Applicant filed this application on 10th January 2022 about three months later. In my view the same has been brought after undue delay. The delay has not been explained.
16. I have gone through the defence on record. The Defendant admits he executed the sale agreements. In my view, allowing this application and/or setting aside the judgment dated 18th February 2021 will not serve any purpose in light of the defence.
17. The Plaintiffs ought to be allowed to enjoy the fruits of their judgment.
18. In conclusion, I find no merit in this application and the same is dismissed with costs to the Plaintiffs.
19. It is so ordered.
DATED, SIGNED AND DELIVERED NAIROBI THIS 9TH DAY OF JUNE 2022. ..................................L. KOMINGOIJUDGEIn the presence of:-Mr. Kimani for the PlaintiffsMs Orina for the DefendantSteve - Court Assistant