[2023] KEHC 3446 (KLR)

Ragita & another v Kuria West Land Disputes Tribunal (Kehancha Division) & 3 others (Petition 4 of 2011) [2023] KEHC 3446 (KLR) (29 March 2023) (Ruling)

Neutral citation: [2023] KEHC 3446 (KLR)

Republic of Kenya

In the High Court at Kisii

Petition 4 of 2011

PN Gichohi, J

March 29, 2023

IN THE MATTER OF ARTICLES 20, 22, 23 (3) & 40 OF THE CONSTITUTION 2010 AND IN THE MATTER OF VIOLATION AND/OR INFRINGEMENT ON THE PROPERTY RIGHTS OF THE PETITONER AND IN THE MATTER OF THE REGISTERED LAND ACT, CAP 300-LAWS OF KENYA AND IN THE MATTER OF LAND REGISTRATION NUMBER NORTH SAKWA/KAMRESI/15 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION & PROTECTION OF FUNDAMENTAL RIGHTS & FREEDOMS OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES, 2006 AND IN THE MATTER OF SECTION 19 (SIXTH SCHEDULE) OF THE CONSITUTION, 2010.

Between

Mwita Ragita

1st Petitioner

Musa Ragita

2nd Petitioner

and

Kuria West Land Disputes Tribunal (Kehancha Division)

1st Respondent

Resident Magistrate’s Court at Kehancha

2nd Respondent

Attorney General

3rd Respondent

Samson Marigo Makubo

4th Respondent

Ruling

1. The 4th Respondent has moved this court by way of a Notice of Motion dated October 25, 2022 seeking orders that the petitioners Petition dated February 16, 2011 and filed on February 17, 2011 be dismissed with costs for want of prosecution. The grounds are that the Petitioners had also filed an application for Judicial review that is Misc Application No 52 of 2010 Republic Versus Kuria West Land Disputes Tribunal (Kehancha Division) The Resident Magistrate’s Court at Kehancha, The Attorney General Samson Marigo Makubo exparte Mwita Ragita, Anna Robi & Musa Ragita alias Emmanuel Mogosi Ragita.

2. However, this application for judicial review as struck out with costs to Samson Marigo Makubo who was an Interested party and also the 4th Respondent in this petition.

3. That the 4th Respondent/Applicant herein, proceeded to file a bill of costs dated February 25, 2015 against the Petitioners herein but the same was struck out since this petition was still pending before court. The applicant therefore states that this petition was last in court in year 2016 and no action has been taken by the petitioners towards hearing of this petition.

4. This application is supported by the affidavit sworn by Samson Marigo Makubo on October 25, 2022. The deponent basically reiterates the grounds on the face of the application and hence need not be reproduced here.

5. Parties argued the application orally before court on March 8, 2023 and very briefly. Mr Magara for the 4th Respondent/Applicant simply submitted that the petition dated February 16, 2011 should be dismissed with costs and interest to the 4th Respondent as the Petitioner is not willing to prosecute the same.

6. In response, Mr Mulisa for the Petitioner/Respondent opposed the application on the grounds that: -1. The petition concerns land in Kehancha in Migori County and therefore, in view of Article 162 and 165 of the constitution, this court lacks jurisdiction to handle this petition and therefore, the court should transfer it to Environment and Land Court in Migori.2. That in regard to issue of delay in prosecuting this petition, the firm of Advocates representing the petitioner lost in touch with the petitioner herein.

7. Mr Magara in a rejoinder insisted that this petition should be dismissed as prayed as the petitioner has lost interest in the same.

8. On jurisdiction, Mr Magara submitted that the issue is an afterthought as it has never been brought to the attention of this court.

Determination 9. I have considered the application and the affidavit in support. I note that the petitioner did not file any affidavit or grounds of opposition in response for the Application herein. I have also considered the oral submission, by both counsel for the parties herein.

10. There is no dispute that this matter has been pending before this court since 2016 when the Bill of costs filed by the 4th Respondent was struck out. It is not lost to this court that this is a petition that was filed in 2011 and no doubt the same touched on issues regarding land. The same was filed after promulgation of the Constitution of Kenya 2010. The issues for determination are: -1. Whether the petition should be dismissed with costs for want of prosecution2. Whether the petition should be transferred to Environment and Land Court.

11. As earlier stated, there is no dispute that the petition has been lying before court for a period of more than one year and to be specific for a period of over six (6) years. From the bar, counsel for the Petitioner states that the Petitioner lost in touch with him.

12. If that is the case, they never moved the court in any way towards prosecution of the petition and they are still on record. Failure by the petitioner to get in touch with his advocates or even attend court is a sign of lack of interest in the matter. There is no cause shown for that delay and under order 17 Rule 2 (3) of the Civil Procedure Rules, the petition is ripe for dismissal.

13. On the issue as to whether the petition should be transferred to Environment and Land Court, that is an issue that ought to have been raised by counsel for the Petitioner several years ago as the Environment and Land Court has been in existence for all these years.

14. The question then is, what purpose would such a transfer serve in the circumstances. The only purpose it would serve is to contribute to backlog of cases in courts. Under S 1A and 1B of the Civil Procedure Act, parties and their Advocates are obliged to take steps toward facilitating expeditious disposal of their cases but the petitioner, and his Advocate have clearly failed to do so.

15. Having failed to get in touch with his advocates as stated herein, the Petitioner lacks interest in the case and no useful purpose will be served in transferring this matter to Environment and Land Court at this juncture. The transfer will not change the unexplained and inordinate delay in prosecution of this petition.

16. In the circumstances this court declines to transfer the petition to the said court as sought by Mr Mulisa in his oral submissions. This petition is therefore dismissed for want of prosecution. Costs to the 4th Respondent.

RULING READ, DELIVERED AND DATED THIS 29TH MARCH 2023. PATRICIA GICHOHIJUDGEIn the presence of:Mr. Mulisa for the PetitionerMr Magara for 4th RespondentIsindu, Court Assistant