[2022] KEELC 13460 (KLR)

Republic v Deputy County Commissioner, Baringo North & 6 others; Boit (Interested Party); Cheptoo (Exparte Applicant) (Judicial Review 20 of 2022) [2022] KEELC 13460 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEELC 13460 (KLR)

Republic of Kenya

In the Environment and Land Court at Iten

Judicial Review 20 of 2022

L Waithaka, J

October 13, 2022

FORMERLY ELDORET ELC JUDICIAL REVIEW CAUSE NO.9 OF 2020 IN THE MATTER OF AN APPLICATION OF STEPHEN KIPROP CHEPTOO FOR JUDICIAL REVIEW PROCEEDINGS FOR ORDER OF CERTIORARI AND PROHIBITION AND IN THE MATTER OF THE LAND ADJUDICATION ACT (CAP 284) LAWS OF KENYA AND IN THE MATTER OF PLOT NUMBER 260 KAPKIAMO ADJUDICATION SECTION (BARINGO NORTH SUB-COUNTY) AND IN THE MATTER OF THE DECISION OF THE DEPUTY COUNTY COMMISSIONER, BARINGO NORTH SUB COUNTY

Between

Republic

Applicant

and

Deputy County Commissioner, Baringo North

1st Respondent

Cabinet Secretary for Lands, Housing & Urban Development

2nd Respondent

Land Registrar, Baringo Lands Registry

3rd Respondent

County Land Adjudication & Settlement Officer, Baringo

4th Respondent

Director of Land Adjudication and Settlement

5th Respondent

Chief Land Registrar

6th Respondent

Attorney General

7th Respondent

and

William Argut Boit

Interested Party

and

Stephen Kiprop Cheptoo

Exparte Applicant

Ruling

1. On January 26, 2022 this court dismissed the application by the ex parte applicant dated November 18, 2021 for none attendance.

2. On April 13, 2022, about 2 ½ months later, the ex parte applicant filed the notice of motion dated April 12, 2022 seeking an order setting aside the order dismissing the application and an order reinstating the application dated November 18, 2021.

3. The application is premised on the grounds that the applicant’s counsel was present in court virtually but owing to a technical hitch, the counsel was unable to communicate with the court; that the applicant is keen, interested and desirous of prosecuting the application that was dismissed; that the absence of the applicant’s counsel in court is excusable and that no prejudice will be occasioned on the respondents and the interested party if the orders sought are granted. Further, that it is in interest of justice that the orders sought be granted.

4. The application is supported by the affidavit of the ex parte applicant’s advocate, Edwin Kibet Mwaita, in which the grounds on the face of the application are reiterated.

5. The application is opposed on the grounds that the ex parte applicant’s counsel was not diligent and keen to prosecute the application despite having been afforded an opportunity to do so after the main suit was dismissed for want of prosecution and that the applicant’s main case has no chance of success because contrary to his contention that he was denied a fair hearing, there is evidence that he was accorded a fair hearing. Terming the application lacking in merit and an abuse of the court process, the interested party urges the court to dismiss it with costs.

Determination 6. As pointed out herein above, this application seeks to set aside the order of dismissal of the ex parteapplicant’s application dated November 18, 2018 on the ground that theex parte applicant’s counsel was present when the matter was called out for hearing virtually but was prevented from participating in the proceedings by a technical hitch; his mobile gadget number 0722, 250,490 developed a technical hitch that compromised his communication with the court during hearing.

7. Whereas the reasons given for absence of theex parte applicant’s counsel when the application was called for hearing, if proven, would form a good reason for setting aside the orders issued by the court, despite having deposed that he was admitted to the court session; the ex parte applicant’s counsel has not presented any evidence before this court capable of showing that indeed he was in attendance and that he was prevented from participating in the court proceedings by the said technical hitch. Moreover, there was unexplained delay of over 2 ½ months in filing the application to set aside the order issued by the counsel. I find the delay, in the circumstances of this case to have been inordinate and inexcusable. That delay coupled with the previous conduct of the ex parteapplicant that had led to dismissal of the main suit, makes this court not satisfied that the applicant has made up a case for exercise of the discretionary power vested in it in favour of the ex parte applicant.

8. The upshot of the foregoing is that the notice of motion dated April 12, 2022 is found to be lacking in merit and is dismissed with costs to the Interested Party. No costs are awarded to the respondents as they did not defend the application.

9. Orders accordingly.

DATED, SIGNED AND DELIVERED, AT ITEN THIS 13THDAY OF OCTOBER, 2022. L. N. WAITHAKAJUDGERuling read virtually in the presence of:Mr. Mwaita for the applicantN/A for respondentsMs. Esang holding brief for Mr. Kipkenei for the Interested party.Christine Towett: Court AssistantITEN ELC J/R NO. 20 OF 2022 (RULING) Page 3 of 6