[2012] KEHC 3236 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA ATBUNGOMA

CIVIL SUIT 12 OF 2001

PETER MUNIALO MALIA::::::::::::::::::::::: PALINTIFF

~VRS~

NASITANJE MAKHANU::::::::::::::::::::: 1ST DEFENDANT

JOHN WANJALA MUNIALO ::::::::::::::::::::: 2ND DEFENDANT

RULING

On 24/1/2001 the Plaintiff filed this suit seeking that the registration of land parcel no.Bungoma/Tongaren/1547 in the name of 2nd Defendant be cancelled. His case was that between 7/9/1989 and 7/2/1996 he bought this suit land from the 1st Defendant and that the transaction got the blessings of the Land Control Board. However, the 1st Defendant fraudulently transferred the suit to the 2nd Defendant who was purporting to receive it on his (Plaintiff’s) behalf. He sought a declaration that the 2nd Defendant holds the land in trust for him.

The Defendants prepared a joint defence which they filed on 1/3/2001. Their case was that the 1st Defendant sold 4 acres to the 2nd Defendant and ½ acre to the Plaintiff from land parcel no.Bungoma/Tongaren/275. The sale created land parcel no.Bungoma/Tongaren/1547 for the 2nd Defendant and had parcel no.Bungoma/Tongaren/1548 for the Plaintiff. The Plaintiff sold his ½ to one Sofia in 1994. When it came to obtain the Land Control Board Consent, however, the Plaintiff took advantage of the 1st Defendant’s illiteracy and caused the transfer of the land parcels to himself. The Defendants denied any fraud and pleaded that there was pending Civil Suit no.37 of 2000 at Webuye Court between the same parties and over the same land.

On 28/2/2008 the Plaintiff’s suit was dismissed for want of prosecution under the then Order 16 rule 6 of the Civil Procedure Rules. On 12/3/2012 the Plaintiff applied to have the dismissal order set aside, varied or vacated and to have the suit reinstated for hearing and determination. His case was that he filed the suit in 2001 through Musambai & Co. advocates. In 2003 he went to the firm to check and found the offices closed. In 2004 he went to the offices and was informed that his file had been passed on to Aburili & Co. advocates. He went to this firm but his file could not be traced. In 2010 he called one Peter in the firm who informed him that the file had been traced. He went to the firm and took the particulars of the case. He went to court and found the case had been dismissed. He instructed Areba & Co. advocates to take up the matter. The present application was subsequently filed through Mutenyo Wattimah & Co. advocates.

The Defendants filed a replying affidavit to say that the application was not competent because the order that is sought to be set aside was not annexed. The response by the counsel for the Plaintiff was that any defect to the application can be cured by Article 159 (2) (d) of the Constitution of Kenya 2010. The Defendants’ further plea was that the plaintiff has lost interest in the case. This was denied in the supplementary affidavit.

The Plaintiff took about 4 years to bring the application. It was along period of inaction. He has explained the delay. It is not in dispute that his advocate died and it took some time before he came to know that another advocate had taken over the file. Both the deceased advocate and the new advocate, I find, failed him. The explanation he has given is, in the circumstances of the case, plausible. I consider that the parties are disputing over land. No prejudice will be suffered that costs cannot compensate. Further, it is appreciated that justice is best served when parties to a dispute are heard, and are allowed to call witnesses, before their matter is determined. I allow the application, but ask that the Plaintiff do pay costs.

Dated, signed and delivered at Bungoma this 11th day of July 2012.

A.O. MUCHELULE

JUDGE