[2018] KEELC 2235 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. MISC. APPLN. NO. 58 OF 2017

REPUBLIC.....................................................................................APPLICANT

VERSUS

THE DEPUTY COUNTY COMMISSIONER

YATTA SUB-COUNTY......................................................1ST RESPONDENT

THE COUNTY LAND REGISTRAR.............................2ND RESPONDENT

THE COUNTY SURVEYOR...........................................3RD RESPONDENT

AND

KISILU MULWA.................................................1ST INTERESTED PARTY

BONIFACE MUASYA KILONZO....................2ND INTERESTED PARTY

ANNASTACIA KILONZO.................................3RD INTERESTED PARTY

Representing GREGORY KILONZO (deceased)

AND

JOHN NTHUKU MAINGI.................................................1ST APPLICANT

ALEXANDER KILONZO MAINGI.................................2ND APPLICANT

DANIEL NZYOKA MAINGI............................................3RD APPLICANT

PETER MUTINDA MAINGI............................................4TH APPLICANT

WANZA MAINGI KIANGI..............................................5TH APPLICANT

VICTORIA KITHIA MAINGI........................................6TH APPLICANT

(Legal representatives of the Estate of MAINGI KIANGI (deceased)

RULING

1. In the Notice of Motion dated 23rd November, 2017, the Applicants are seeking for the setting aside of the order of 31st October, 2017 dismissing the Notice of Motion dated 14th July, 2017 for non-attendance and to reinstate the Application for hearing inter-partes.

2. The Application is premised on the grounds that the Application dated 14th July, 2017 was fixed for hearing on 31st October, 2017; that on that day, the Applicants’ advocate realised that she had been checking the wrong case number just to find that indeed the Application had been dismissed by the court and that the suit land involves a big parcel of land which has been occupied by many people.

3. The Application is supported by the Affidavit of the Applicant who has deponed that the dismissal of the matter arose due to the confusion of the case numbers and that her mistake should not be visited on the innocent litigant; that she filed the Application for reinstatement within reasonable time and that the Applicants are desirous of challenging the decision of the Minister.

4. In response, the 1st Interested Party deponed that the circumstances under which the Applicants’ counsel failed to appear in court is inexcusable; that no good reasons have been given to persuade the court to exercise its discretion in favour of the Applicants and that he will be prejudiced with an order of reinstatement of the suit because he has been litigating over the suit property since 1962.

5. Although the 1st Respondent filed a Replying Affidavit in respect to the Application dated 23rd November, 2017, he did not respond to the issue of whether this court should reinstate the Application that was dismissed by the court or not.

6. In his submissions, the Applicants’ advocate submitted that the Applicants are not seeking to defraud or overreach, but to be heard on merit; that the Applicants have a good case with chances of success and that the decision of the Minister’s representative will affect many people residing on the suit land. Counsel relied on the cases of Maina vs. Muriuki and Julius Wafula Chebi vs. Gibon Akifuma & Another (2014) eKLRwhich I have considered.

7. The Respondents’ counsel submitted that the Notice of Motion dated 14th July, 2018 that was dismissed by the court was never served on the Attorney General; that no sufficient reasons have been given as to why the Application should be reinstated and that there has been inordinate delay in filing the current Application.

8. The Respondents’ counsel submitted that the Applicants do not have a good case; that Judicial Review on its own cannot resolve the question of ownership and that the Application is an abuse of the court process.

9. The Interested Parties’ advocate submitted that it is the Applicants’ advocate who was indolent; that the Applicants’ advocate did not exhibit the extracts of the diaries, cause lists and court attendance slips and that the instant Application was filed three weeks after the matter was dismissed.

10. The record shows that the Applicants filed the Notice of Motion dated 14th July, 2017 in which they sought for an order of certiorari and prohibition as against the Respondents.

11. When the matter came up for hearing on 31st October, 2017, the Applicants’ advocate was not in court. Although the Interested Parties’ advocate was in court on that day, she informed the court that she had not filed a response to the Application. She however applied for the dismissal of the Application for non-attendance on the part of the Applicants’ counsel. The court then dismissed the Application for non-attendance and for want of prosecution.

12. On 3rd November, 2017, the Plaintiff filed an Application dated 2nd November, 2017 seeking to set aside the orders dismissing the Notice of Motion dated 14th July, 2017. The court declined to certify the Application as urgent. The Application was subsequently withdrawn by the Applicants on the ground that it had so many mistakes.

13. In the current Application, the Applicants’ counsel has deponed that her file holds the pleadings for ELC. No. 129 of 2017 and Misc. Application Number 58 of 2017; that when she came to court on 31st October, 2017, she looked for file number 129 of 2017 in the registry instead of Misc. Application Number 58 of 2017 and that by the time she realised that she was using the wrong file number, the matter had already been dismissed for non-attendance.

14. The explanation by the Applicants’ counsel that she was in the court premises on 31st October, 2017 when the matter came up for hearing, and that she did not respond to the matter when it was called out because she was using a different case number is plausible and excusable.

15. Indeed, after the dismissal of the matter, the Applicants’ counsel filed the Application for reinstatement after two days, meaning that she became aware of the dismissal of the suit immediately.

16. Considering that land matters are generally emotive, and in view of the fact that the parties herein are many, the issues raised in the Applicants’ Motion should be heard on merit. Having been satisfied that the mistake of the Applicants’ advocate is excusable, and the Applicants’ advocate having filed the Application for reinstating the suit within a reasonable period, I find that the Application of 23rd November, 2017 is meritorious.

17. For those reasons, I allow the Application dated 23rd November, 2017 as prayed. Each party to bear its own costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 27TH DAY OF JULY, 2018.

O.A. ANGOTE

JUDGE