[2024] KEELC 1363 (KLR)
The court found that the notice of withdrawal by the 3rd plaintiff, though present in the physical file, was never properly filed through the e-filing portal as required by the court's procedures. As a result, the conditions set in the court's earlier order of 2/11/2023 were not satisfied. Consequently, the...
Source-derived case information.
- Citation
- [2024] KEELC 1363 (KLR)
- Parties
- Plaintiff: Novapeku (PK) Construction and Engineering Company Limited; Plaintiff: Peter Kuria Njoroge; Plaintiff: James Gacheru Kariuki; Defendant: County Government of Kiambu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 197 of 2018
- Procedural Posture
- Environment and Land Case / Order on Judgment Date Reservation and Withdrawal of Claim
- Outcome
- Order reserving judgment date vacated; proceedings in absence of 3rd plaintiff set aside; amendments removing 3rd plaintiff expunged.
- Judges
- BM Eboso
- Legal Topics
- Withdrawal of Suit, Amendment of Pleadings, E Filing Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Novapeku (PK) Construction and Engineering Company Limited
Plaintiff
Peter Kuria Njoroge
Plaintiff
James Gacheru Kariuki
Plaintiff
County Government of Kiambu
Defendant
Procedural Posture
Environment and Land Case / Order on Judgment Date Reservation and Withdrawal of Claim
Legal Issues
- 1 Whether the notice of withdrawal by the 3rd plaintiff was properly filed in accordance with the e-filing procedure.
- 2 Whether the proceedings conducted in the absence of the 3rd plaintiff and the amendment removing him from the suit should stand.
Ratio Decidendi
The court found that the notice of withdrawal by the 3rd plaintiff, though present in the physical file, was never properly filed through the e-filing portal as required by the court's procedures. As a result, the conditions set in the court's earlier order of 2/11/2023 were not satisfied. Consequently, the proceedings conducted in the absence of the 3rd plaintiff stood set aside, and the amendments purporting to remove him from the suit were expunged. The court therefore had no basis to render a judgment, and the order reserving a judgment date was vacated.
Court Disposition
Order reserving judgment date vacated; proceedings in absence of 3rd plaintiff set aside; amendments removing 3rd plaintiff expunged.
Orders
- The order reserving a date for judgment in this suit is hereby vacated.
- Proceedings conducted in the absence of the 3rd plaintiff stand set aside.
Full Case Text
Judgment text and source record
24 paragraphs
Novapeku (PK) Construction and Engineering Company Limited & 2 others v County Government of Kiambu (Environment & Land Case 197 of 2018) [2024] KEELC 1363 (KLR) (7 March 2024) (Order)
Neutral citation: [2024] KEELC 1363 (KLR)
Republic of Kenya
In the Environment and Land Court at Thika
Environment & Land Case 197 of 2018
BM Eboso, J
March 7, 2024
Between
Novapeku (PK) Construction and Engineering Company Limited
1st Plaintiff
Peter Kuria Njoroge
2nd Plaintiff
James Gacheru Kariuki
3rd Plaintiff
and
County Government of Kiambu
Defendant
Order
1. On 2/11/2023, this court issued the following verbatim order in relation to this suit.“For the above reason, the order reserving a date for Judgment in this matter is hereby vacated and M/s Kanyi Kiruchi & Company Advocates are directed to comply with the laid down procedure through which an advocate may withdrew a claim on behalf of a litigant who is acting in person. If this is not done within 30 days from today, the proceedings conducted in this suit in the absence of the 3rd plaintiff shall stand set aside. Similarly, the amendment purporting to remove the 3rd plaintiff from this suit shall stand expunged from the pleadings.”
2. On 7/12/2023, Mr. Kanyi, counsel for the 1st and 2nd plaintiffs attended court and informed the court that the 3rd plaintiff had filed a notice withdrawing his claim. Counsel asked the court to reserve a date for Judgment in the matter. At that point, Thika Environment Land Court Registry had transitioned to e-filing effective from 1/7/2023. At the time counsel made the above presentation [7/12/2023], there was in the physical case file a photocopy of a notice of withdrawal of suit dated 3/11/2023, bearing a very thin margin and expressed as having been signed by the 3rd plaintiff. The said notice is still in the physical case file.
3. Based on the above presentation by counsel the court reserved 7/3/2024 as a the date when Judgment in this suit would be rendered. While preparing to write the Judgment, it has emerged that the notice of withdrawal dated 3/11/2023 which is in the file folder was never uploaded onto the e-filing portal. Put differently, the notice of withdrawal dated 3/11/2023, though placed in the physical case file, was never filed. Indeed, there is no evidence of a properly uploaded notice in the e-portal.
4. In the circumstances, it follows that the order issued by the court on 2/11/2023 took effect on 3/12/2023, meaning that the hearing proceedings that were conducted in this suit in the absence of the 3rd plaintiff stood set aside and the amendments which purported to remove the 3rd plaintiff from this suit stood expunged.
5. Consequently, the court has no basis upon which to render aJudgment. For the above reasons, the order reserving a judgment date in this suit is hereby vacated.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 7TH DAY OF MARCH 2024B M EBOSOJUDGEIn the Presence of: -Mr Waihira for the PlaintiffsCourt Assistant: Hinga