[2018] KEELC 3352 (KLR)
The court found that the 1st Respondent was not aware of the transfer of the suit from Machakos to Nairobi and that there was no evidence that the 1st Respondent was informed of the change in venue. The 1st Respondent had demonstrated intent to oppose the Petitioner’s application by filing a replying affidavit in...
Source-derived case information.
- Citation
- [2018] KEELC 3352 (KLR)
- Parties
- Petitioner: Simon Wambugu (Suing on his own behalf and on behalf of 200 members of Athi River Makadara Estate Association); Respondent: Machakos County Government; Respondent: The Honourable Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 14 of 2015
- Procedural Posture
- Constitutional Petition / Ruling on Application to Set Aside Ex Parte Orders and for Rehearing
- Outcome
- application allowed; ex parte orders set aside; matter to be heard afresh
- Legal Topics
- Setting Aside Orders, Ex Parte Proceedings, Transfer of Suits, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Wambugu (Suing on his own behalf and on behalf of 200 members of Athi River Makadara Estate Association)
Petitioner
Machakos County Government
Respondent
The Honourable Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Set Aside Ex Parte Orders and for Rehearing
Legal Issues
- 1 Whether the orders issued on 19th October, 2015 should be set aside due to lack of notice to the 1st Respondent regarding the transfer of the suit.
- 2 Whether the 1st Respondent was denied an opportunity to be heard on the Petitioner’s application dated 22nd September, 2015.
Ratio Decidendi
The court found that the 1st Respondent was not aware of the transfer of the suit from Machakos to Nairobi and that there was no evidence that the 1st Respondent was informed of the change in venue. The 1st Respondent had demonstrated intent to oppose the Petitioner’s application by filing a replying affidavit in Machakos in readiness for the hearing. The failure to attend court in Nairobi was not deliberate but resulted from lack of communication. The court held that it would be unjust to let the 1st Respondent suffer due to the failure of the court and the Petitioner to inform it of the correct venue. Consequently, the court exercised its discretion to set aside the ex parte orders and...
Court Disposition
application allowed; ex parte orders set aside; matter to be heard afresh
Orders
- The orders issued on 19th October, 2015 are set aside.
- The Petitioner’s application dated 22nd September, 2015 shall be heard afresh in the Environment and Land Court at Machakos.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MACHAKOS
CONSTITUTIONAL PETITION NO. 14 OF 2015
BETWEEN
SIMON WAMBUGU (Suing on his own behalf and on behalf of 200membersofATHI
RIVER MAKADARA ESTATEASSOCIATION..........PETITIONER/RESPONDENT
AND
MACHAKOS COUNTY GOVERNMENT................1ST RESPONDENT/APPLICANT
THE HONOURABLE ATTORNEY GENERAL.............................2ND RESPONDENT
RULING
What is before me is the 1st Respondent’s Notice of Motion application dated 17th November, 2015 seeking to set aside the orders that were made herein on 19th October, 2015 and for the Petitioner’s Notice of Motion application dated 22nd September, 2015 to be heard afresh inter parties. The 1st Respondent has also sought an order that, its replying affidavit to that application be deemed as duly filed within time. The application has been brought on the ground that the 1st Respondent was not aware that this suit had been transferred from the High Court at Machakos to the Environment and Land Court at Milimani, Nairobi. The 1st Respondent has contended that it was prepared and ready to oppose the Petitioner’s application dated 22nd September, 2015 that was allowed by the court on 19th October, 2015 as unopposed. The 1st Respondent has averred that it filed its response to the said application in the High Court at Machakos on 16th October, 2015 and that on 19thOctober, 2015 when the application was supposed to come up for hearing, its advocate attended court in Machakos and found the court not sitting. The 1stRespondent has averred that it was when the Petitioner served it on 3rd November, 2015 with an order issued by this court that it learnt that the Petitioner’s application dated 22nd September, 2015 had been transferred from the High Court at Machakos to this court for hearing. The 1st Respondent has annexed to its affidavit is support of the application, a copy of a replying affidavit that it had filed in the High Court at Machakos on 16th October, 2015 in opposition to the said application dated 22nd September, 2015.
The application is opposed by the Petitioner through a replying affidavit and supplementary affidavit sworn by Simon Wambugu on 20th January, 2016 and 15th September, 2016 respectively. The Petitioner has contended that the orders sought by the applicant if granted would prejudice him. The application was heard by way of written submissions. I have considered the application together with the supporting affidavit. I have also considered the affidavits that were filed by the Petitioner in opposition to the application. Finally, I have considered the written submissions by the Petitioner and the case law that was cited in support thereof. I am satisfied from the material on record that the 1st Respondent has made out a case for the setting aside of the orders that were made herein on 19th October, 2015. In the two affidavits filed by the Petitioner in opposition to the application, the Petitioner has not controverted the averments in the 1st Respondent’s affidavit that it was not aware that the file relating to this suit had been transferred from the High Court at Machakos to this court. There is no evidence that the 1st Respondent was informed that the Petitioner’s application dated 22nd September, 2015 would be heard in Nairobi and not at Machakos. I am satisfied that the 1st Respondent intended to oppose the Petitioner’s application dated 22nd September, 2015. This can be seen from the fact that the 1st Respondent prepared and filed a replying affidavit to that application on 16th October, 2015 in the High Court at Machakos in readiness for the hearing that was scheduled to take place on 19th October, 2015. I am satisfied that the 1st Respondent’s advocate’s failure to attend court in Nairobi on 19th October, 2015 was not deliberate and was not intended in any way to delay the hearing of the Petitioner’s application aforesaid. The failure was as a result of lack of communication as to where the application was to be heard. I am of the view that the 1st Respondent should not suffer for the failure by the court and the Petitioner to inform it of the court where the subject application was to be heard.
For the foregoing reasons, I find merit in the Notice of Motion dated 17th November, 2015. The application is allowed on the following terms:
1. The orders issued herein on 19th October, 2015 are set aside.
2. The Petitioner’s application dated 22nd September, 2015 shall be heard a fresh in the Environment and Land Court at Machakos.
3. The status quo shall be maintained for a period of sixty (60) days pending the hearing of the application.
4. This file shall be returned to the Environment and Land Court at Machakos for further action.
5. The costs to be in the cause.
Delivered and Dated at Nairobi this 11th day of May 2018
S. OKONG’O
JUDGE
Ruling read in open court in the presence of:
Ms Apolot holding brief for Onduso for the Petitioner
No appearance for the 1st Respondent
No appearance for the 2nd Respondent
Catherine Court Assistant