[2023] KEELC 20540 (KLR)
The court found that there was no evidence of service of the application as claimed by the plaintiff, and that the directions on filing submissions and serving the directions were not complied with. The court noted a pattern of indolence by the applicant in prosecuting both the application of February 26, 2021 and...
Source-derived case information.
- Citation
- [2023] KEELC 20540 (KLR)
- Parties
- Plaintiff: Boniface Gikuya Njeru; Defendant: Frank Bob Muigai; Defendant: Alice Wanjiru Njuguna
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 152 of 2013
- Procedural Posture
- Environment and Land Case / Ruling on Application to Set Aside or Vary Previous Dismissal Order
- Outcome
- application dismissed
- Judges
- LN Mbugua
- Legal Topics
- Setting Aside Orders, Non Compliance With Court Orders, Injunctions, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Gikuya Njeru
Plaintiff
Frank Bob Muigai
Defendant
Alice Wanjiru Njuguna
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Set Aside or Vary Previous Dismissal Order
Legal Issues
- 1 Whether the plaintiff's application to set aside or vary the dismissal order of October 18, 2021 should be granted.
- 2 Whether there was proper service of the application and compliance with court directions.
- 3 Whether the plaintiff's failure to attend court and prosecute the application was deliberate or excusable.
Ratio Decidendi
The court found that there was no evidence of service of the application as claimed by the plaintiff, and that the directions on filing submissions and serving the directions were not complied with. The court noted a pattern of indolence by the applicant in prosecuting both the application of February 26, 2021 and the current application of June 20, 2022. While the applicant was eventually granted an extension and complied with filing submissions, the earlier failures and lack of diligence were not excused. The court held that the application to set aside or vary the dismissal order lacked merit and dismissed it, emphasizing that compliance with court orders and diligent prosecution of...
Court Disposition
application dismissed
Orders
- The application dated June 20, 2022 is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
Njeru v Muigai & another (Environment & Land Case 152 of 2013) [2023] KEELC 20540 (KLR) (5 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20540 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 152 of 2013
LN Mbugua, J
October 5, 2023
Between
Boniface Gikuya Njeru
Plaintiff
and
Frank Bob Muigai
1st Defendant
Alice Wanjiru Njuguna
2nd Defendant
Ruling
1. Before me is the plaintiffs application dated June 20, 2022 seeking orders to set aside or vary the orders of October 18, 2021 in which this application dated February 26, 2021 was dismissed. In that earlier application of February 26, 2021 the plaintiff was seeking injunction orders against the defendants.
2. On May 30, 2023, the application came up for hearing when counsel for the plaintiff informed the court that they had served the application vide an affidavit of service dated May 29, 2023. The court proceeded to give directions for the parties to file and serve their written submissions by June 30, 2023. The applicant was directed to serve the directions given on that day upon the respondent. The court was also to confirm that the application had indeed been served.
3. I have perused both the physical and the digital file (CTS) and I have not seen any affidavit of service dated May 29, 2023; indeed there is no evidence that the said application was ever served. The directions on filing of submissions and service of directions of May 30, 2023 were also not complied with. The only document that could be seen in the CTS is the paginated Trial Bundle filed on June 28, 2023.
4. Nevertheless on September 21, 2023, this court granted the Applicant an extension to file their submissions. This time round, there was compliance. The submissions are dated September 27, 2023 which I have duly considered. The Applicant has heavily relied on the case ofHKM v BKC [2021] eKLR to buttress the point that their failure to attend court was not deliberate.
5. I have considered all the issues raised herein. In the case of Lawrence Kinyua Mwai vs Nyariginu Famers Co Ltd & Another [2019] eKLR, this court discouraged the practice of filing plethora of applications which derail the main hearing.
6. The provisions of section 43 of theEnvironment and Land Court Practice Directions Gazette Notice No 5178 (2014) stipulate that none compliance with court orders may attract sanctions.
7. Taking into account all the circumstances of this case, particularly the indolence manifested by the applicant in the prosecution of both the applications of February 26, 2021 and June 26, 2022, I find that the application dated June 20, 2022 has no merits. The same is hereby dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF OCTOBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Njamo holding brief for Kamotho for plaintiff