[2021] KEELC 3447 (KLR)

REPUBLIC OF KENYA

IN THE ENVEIROMENT AND LAND COURT

AT MILIMANI

ELC 473 OF 2008

PETER GICHUHI as Chairman

SIMON KIMUNGE MWIHOTI as Secretary

STEPHEN KAMAU MUCHIRI as Treasurer suing for and

On behalf of MARURUI ESTATE RESIDENTS WELFARE

ASSOCIATION..................................................PLAINTIFF

VERSUS

JANET WAIRIMU MWANIKI..................1ST DEFENDANT

THE CITY COUNCIL OF NAIROBI......2ND DEFENDANT

RULING

1. This suit was filed on 30th September 2008. As at 9th May 2013, the suit was not ready for hearing. The suit was first fixed for hearing on 17th February 2014. The first time it came up for hearing, the suit was removed from the hearing list on the ground that the parties were not ready to proceed.

2. The case was once more fixed for hearing on 19th November 2014. Come this date, the counsel for 1st Defendant indicated that they were not ready to proceed as they had not complied with Order 11 of the Civil Procedure Rules. The court then gave all the parties 30 days within which to comply with order 11 of the Civil Procedure Rules.

3. The case was once more fixed for hearing on 23rd November 2015. When the matter came up for hearing, the same could not proceed as the 1st Defendant’s counsel had passed on. The case was again fixed for hearing on 4th April 2017 when again the same could not proceed as the 1st Defendant had not appointed a lawyer to replace her previous deceased advocate. The case was fixed for hearing on 14th March 2018 as the 1st Defendant had now identified a firm of Advocates who were to represent her. On 14th march 2018, the case could not proceed as the 1st Defendant had just appointed a new firm of Advocates. The case was adjourned to 27th September 2018 when again it could not proceed as the counsel for the 1st Defendant was said to be sick.

4. The case was listed for hearing before Justice Mutungi who was in Nairobi for service week. The date allocated was on 29th October 2018. On this date, the case could not proceed as there was no service of hearing notice on the part of the Defendants. The case was adjourned to 28th November 2018. On this date, the case could not proceed as the 1st Defendant’s advocate said that he intended to cease acting for 1st Defendant as he had lost touch with his client. The case was fixed for mention before me on 5th December 2019.

5. When the matter came before me for mention, the court was informed that the counsel who had taken over wanted to photocopy pleadings to enable him proceed. The court granted this request and fixed the matter for mention on 29th April 2019. On 29th April 2019, the counsel for the Defendants did not attend court. Counsel for the Plaintiff took 21st January 2020 for hearing. Come 21st January 2020, the 1st Defendant who was present indicated that she was acting in person and was ready to proceed to hearing. The case proceeded to hearing and the Plaintiffs closed their case. The Court then adjourned the case and fixed defence hearing date for 16th March 2020. The 1st Defendant was asked to file her bundle of documents within 14 days. The 1st Defendant had only filed a list of documents.

6. On 16th March 2020, when the case was supposed to come up for defence hearing, it coincided with the Covid 19 which had just been reported in Kenya. Courts then scaled down the hearing of cases. On 28th April 2020, the court started upscaling the court business. Defence hearing was fixed on 1st October 2020. Hearing notice was given by court. On 1st October 2020, the case was mentioned virtually. The counsel for both the 1st and 2nd Defendants applied for adjournment which was rejected owing to the age of the case. The parties were directed to come to open court for hearing at 10. 30 am.

7. The Court proceeded to open court at 11. 46 am. Counsel for the 2nd Defendants re-newed his application for adjournment which was again rejected. The counsel for the 1st defendant did not attend the open court session. The court deemed the defence case as closed and directed parties to file written submissions. Before the submissions could be filed, the 1st Defendant filed an application seeking review of the orders of 1st October 2020 to enable the 1st Defendant to give her defence and have the Plaintiff recalled for purposes of cross-examination.

8. In the application dated 12th October 2020, the 1st Defendant/ Applicant’s counsel contends that they were appointed to represent the 1st Defendant who was acting in person after the closure of the Plaintiff’s case. They wrote a letter to court asking for proceedings but that there was no response. In the meantime, the Advocates saw from the court’s e-filing portal that the case had been listed for hearing on 1st October 2020.

9. On 1st October 2020, a counsel from the firm of Henia Anzala & Associates M/s Masai attended the virtual mention and applied for adjournment which adjournment was rejected. The court indicated that hearing was to proceed at 10. 30 am. The deponent of the affidavit in support of the application states that she contacted the 1st Defendant to come for hearing and that he was ready to proceed virtually as from 10. 30 am. He waited until 2. 30 pm when he decided to call the counsel for the Plaintiff who informed him that the court proceeded in open court at 11. 46 and that the defence case had been closed.

10. The 1st Defendant contends that if the application is not allowed, the 1st defendant will end up being condemned unheard contrary to Article 50 of the Constitution which provides that a party should be given a fair hearing. The first Defendant further contends that there will be no prejudice suffered if the case is re-opened and the 1st Defendant allowed to file her documents and the Plaintiff’s witness recalled for cross-examination by her counsel.

11. The 1st Defendant’s application was opposed by the Plaintiff based on a replying affidavit sworn on 13th January 2021 by the Plaintiff’s counsel. The Plaintiff contends that the 1st Defendant’s application contains half-truths. The matter was first mentioned virtually when all advocates for parties were present. Applications for adjournment were made by Defendants’ counsel which applications were rejected. The court then ordered that the hearing proceeds in open court at 10. 30 am. Later when the court proceeded to open court, there was no counsel for the 1st Defendant or the 1st Defendant herself.

12. The Plaintiff contends that the 1st Defendant has been given several opportunities before to file documents but has not done so. The 1st Defendant has not shown that she did not adequately cross-examine the Plaintiff’s witness when the matter proceeded to hearing on 21st January 2020. The Plaintiff’s counsel contends that the Plaintiff will be prejudiced if this old case was to be reopened for fresh hearing and cross examination of the Plaintiff’s witness.

13. The parties were directed to dispose of the application through written submissions. The 1st Defendant filed their submissions dated 11th February 2021. The Plaintiff filed submissions dated 5th March 2021. I have considered the submissions filed by the Plaintiff and those filed by the 1st Defendant. I have also considered the application by the 1st Defendant as well as the opposition thereto by the Plaintiff. The only issue for determination is whether the 1st Defendant has met the threshold for review of my orders of 1st October 2020.

14. Order 45 of the Civil Procedure Rules is clear on the grounds for review. Review can only be undertaken where there is discovery of new and important evidence which could not be obtained with due diligence, error on the face of the record or for any sufficient cause. The application must of course be brought without unreasonable delay. In the instant case, the order which is sought to be reviewed was given on 1st October 2020. The present application was made on 12th October 2020. I find that the application was made without undue delay.

15. The ground upon which the 1st Defendant is seeking review is that there are sufficient grounds to warrant review. The 1st Defendant’s counsel contends that he logged in to the e-portal from 10. 30 am to 2. 00 pm when he gave up as the matter was not being called out. He then spoke to the Plaintiff’s counsel who informed him that the case had been mentioned in open court and that defence had been deemed closed.

16. The 1st Defendant’s counsel is not being candid. When the case was mentioned virtually on 1st October 2020, both the counsel to the 1st and 2nd Defendant applied for adjournment. Both applications were declined and the court ordered that hearing was to proceed at 10. 30 am in open court. The court proceeded to deal with applications and mentions virtually. The court finally moved to open court at 11. 46 am. The Plaintiffs’ counsel was present. The counsel for the 2nd Defendant was also present. The counsel for the 2nd Defendant renewed his application for adjournment which again was declined. The court then directed that parties file written submissions as the defence cases were deem closed. The counsel for the 1st Defendant cannot therefore claim that he logged in from 10. 30 am to 2. 30 pm without being heard.

17. The 1st Defendant has shown little effort of proceeding with this case. Despite having been given a number of opportunities to file her bundle of documents, this has not been done. This is conduct of a person who is clearly out to delay the finalization of this case which is now almost thirteen (13) years old. There is absolutely no ground shown to warrant this court to review the orders of 1st October 2020. This application lacks merit. The same is hereby dismissed with costs to the Plaintiff/Respondent.

It is so ordered.

Dated, Signed and delivered at Nairobi on this 8th day of April 2021.

E. O.OBAGA

JUDGE

In the Presence of :-

Mr Kabue for 2nd Defendant

M/s Masai for Mr Anzala for 1st Defendant

M/s Omamo for Mr Namada for Plaintiff

Court Assistant: Okumu

E.O.OBAGA

JUDGE