[2018] KEELC 4207 (KLR)
The court found that the preliminary objection leading to the dismissal of the suit was filed while the Nkubu case was still pending, and that the withdrawal of the Nkubu suit occurred after the present suit had already been filed. The court had already considered the possibility of the withdrawal in its earlier...
Source-derived case information.
- Citation
- [2018] KEELC 4207 (KLR)
- Parties
- Plaintiff: Rosaria Kirianki Mbaya; Defendant: Romano Kigunda M'Ikiugu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 41 of 2017
- Procedural Posture
- Review Application / Ruling on Application to Review and Set Aside Dismissal Order
- Outcome
- application dismissed
- Legal Topics
- Review of Court Orders, Dismissal of Suit, Withdrawal of Suit, Fresh Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosaria Kirianki Mbaya
Plaintiff
Romano Kigunda M'Ikiugu
Defendant
Procedural Posture
Review Application / Ruling on Application to Review and Set Aside Dismissal Order
Legal Issues
- 1 Whether the plaintiff has established sufficient grounds for review and setting aside of the dismissal order dated 18.12.2017.
- 2 Whether the alleged new evidence (withdrawal order in the Nkubu case) constitutes a new material fact justifying review.
Ratio Decidendi
The court found that the preliminary objection leading to the dismissal of the suit was filed while the Nkubu case was still pending, and that the withdrawal of the Nkubu suit occurred after the present suit had already been filed. The court had already considered the possibility of the withdrawal in its earlier ruling. Therefore, the certified copy of the withdrawal order did not constitute new material evidence that would justify a review or setting aside of the dismissal order. The application for review was thus unmerited and dismissed with costs to the respondent.
Court Disposition
application dismissed
Orders
- The application dated 19.1.2018 is dismissed with costs to the respondent.
- This file is marked as closed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 41 OF 2017
ROSARIA KIRIANKI MBAYA.............................PLAINTIFF
VERSUS
ROMANO KIGUNDA M’IKIUGU...................DEFENDANT
RULING
1. This ruling is in respect of the application filed on 19. 1.2018 by plaintiff. In it, applicant prays that the court be pleased to review and set aside the orders of 18. 12. 2017 dismissing the suit.
2. Plaintiff avers that she has obtained certified copies of the withdrawal order in the Nkubu case dated 12. 7.2017. She avers the order forms new material facts as evidence that was not available to her at the time of hearing the preliminary objection.
3. I find that the preliminary objection was filed on 2. 5.2017. It was hence filed during the pendency of the Nkubu case which case was allegedly withdrawn on 12. 7.2017.
4. In my rulings of 18. 12. 2017 in paragraph 5, I stated as follows: “I find that even if the suit 136 of 2014 was withdrawn on 12. 7.2017 (as alleged by plaintiff), that could not have been the basis of filing the present suit which was filed on 13. 2.2017”.
5. Nothing therefore has changed. As rightly submitted by respondent, the court did take into account the possibility of the withdrawal of the Nkubu suit.
6. In the circumstances, the application is unmerited. The same is dismissed with costs to respondent.
7. This file is marked as closed.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 7th MARCH, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Muthoni for applicant
Rimita holding brief for Wamacho for defendant present
HON. LUCY. N. MBUGUA
ELC JUDGE