[2019] KEELC 4693 (KLR)
The court found that the plaintiff's explanation for failing to serve the application on the defendants was not plausible or excusable. The movement of the court file did not prevent the plaintiff's advocate from serving the application, as copies were available. The delay of over two years before seeking...
Source-derived case information.
- Citation
- [2019] KEELC 4693 (KLR)
- Parties
- Plaintiff: Utanu Na Ulungalu Yatta Trading Industry Co. Ltd; Defendant: Francis Mutua Mboya; Defendant: Mutua Mboya & Nzissi Advocates; Defendant: Nganga Ngigi P/A Nganga Ngigi & Co. Advocates; Defendant: Paul Ndiku Munywoki; Defendant: Beatrice Wakhungu; Defendant: Janet Nyaga; Defendant: Grace Ndunda
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 72 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Joinder Application
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Reinstatement of Application, Joinder of Parties, Service of Process, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Utanu Na Ulungalu Yatta Trading Industry Co. Ltd
Plaintiff
Francis Mutua Mboya
Defendant
Mutua Mboya & Nzissi Advocates
Defendant
Nganga Ngigi P/A Nganga Ngigi & Co. Advocates
Defendant
Paul Ndiku Munywoki
Defendant
Beatrice Wakhungu
Defendant
Janet Nyaga
Defendant
Grace Ndunda
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Joinder Application
Legal Issues
- 1 Whether the court should set aside or vary the orders of 20th November, 2017 dismissing the plaintiff's application for joinder of parties.
- 2 Whether the plaintiff's application dated 27th July, 2015 should be reinstated and determined on its merits.
- 3 Whether the failure to serve the application on the defendants was excusable.
Ratio Decidendi
The court found that the plaintiff's explanation for failing to serve the application on the defendants was not plausible or excusable. The movement of the court file did not prevent the plaintiff's advocate from serving the application, as copies were available. The delay of over two years before seeking reinstatement was inordinate and unjustified. The court emphasized that the continuous filing of applications by the plaintiff was causing unacceptable delay in the hearing of a matter filed in 2003. Consequently, the court dismissed the application to set aside the dismissal and to reinstate the joinder application, urging the plaintiff to proceed with the substantive hearing of the...
Court Disposition
application dismissed
Orders
- The application dated 16th March, 2018 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 72 OF 2003
UTANU NA ULUNGALU YATTA TRADING
INDUSTRY CO. LTD.....................................PLAINTIFF/APPLICANT
VERSUS
FRANCIS MUTUA MBOYA..................DEFENDANT/RESPONDENT
MUTUA MBOYA & NZISSI ADVOCATES]
NGANGA NGIGI P/A
NGANGANGIGI & CO. ADVOCATES]
PAUL NDIKU MUNYWOKI]....PROPOSEDDEFENDANTS
/ RESPONDENTS
BEATRICE WAKHUNGU]
JANET NYAGA]
GRACE NDUNDA]
RULING
1. The Notice of Motion dated 16th March, 2018 and filed by Plaintiff is seeking for the following orders:
a. That this Honourable Court do set aside and/or vary the orders of 20th November, 2017.
b. That the Application dated 27th July, 2015 herein be reinstated and determined on its merit.
c. That costs of this Application be in the cause.
2. The Application is premised on the following grounds: that the Application dated 27th July, 2015 came up for hearing on 20th November, 2017; that due to the non-service of the Application on the Respondent, the same was dismissed by the court and that the non-service of the Application dated 27th July, 2015 on the Respondent was an inadvertent mistake that should not be visited on an innocent litigant.
3. It was the deposition of the Plaintiff that the High Court which was in conduct of this matter was divested of jurisdiction to hear land matters; that this matter was transferred to the Environment and Land Court in Nairobi and that they were unable to trace the file.
4. It is the Applicant’s deposition that the Application dated 27th July, 2015 seeks to enjoin the proposed Defendants who bought the suit properties and that the Plaintiff will be prejudiced if the said Application is not heard on merit. The Defendants herein did not file any response to the said Application.
5. The Plaintiff’s Application dated 27th July, 2015 seeking the joinder of Paul Ndiku Munywoki, Beatrice Wakhungu, Janet Nyaga and Grace Ndunda as Defendants came up for hearing on 20th November, 2017. On the said date, the Applicant’s advocate informed the court that he had not served the 3rd-6th Defendants with the Application and requested for another date.
6. The oral Application by the Plaintiff’s advocate to adjourn the matter to enable him serve the Application was declined by the court, and the Application dated 27th July, 2015 was dismissed.
7. The Plaintiff now claims that the failure to serve the said Application was caused by the transfer of the file from Machakos to Nairobi and then back to Machakos and that the failure was also due to an inadvertent mistake of the Plaintiff’s advocate.
8. The Application that the Plaintiff is seeking reinstated was filed in the year 2015. It cannot be said that the same could not be served on the Defendants because of the movement of the court file from Machakos to Nairobi and then back to Nairobi because the Plaintiff’s advocate had the copies of the Application. Considering that it took more than two (2) years for the Plaintiff’s advocate to realize that he had not served the same on the Defendants, I find that the reasons given for failure to serve the Application are not plausible and are inexcusable.
9. Indeed, this matter having been filed in the year 2003, the continuous filing of Applications by the Plaintiff is delaying the hearing of the matter which is unacceptable. Consequently, I dismiss the Application dated 16th March, 2018 with no order as to costs. The Plaintiff should move with haste to fix this old matter for hearing
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 8TH DAY OF FEBRUARY, 2019.
O.A. ANGOTE
JUDGE