[2014] KEHC 5340 (KLR)
The court found that although the suit had been dismissed for want of prosecution and no valid explanation was provided for the delay, the applicant had moved the court and, in the interests of fairness and justice, should be given an opportunity to be heard on the merits of the suit. The court held that...
Source-derived case information.
- Citation
- [2014] KEHC 5340 (KLR)
- Parties
- Plaintiff: Wilson Nato; Defendant: Francis Simiyu Wekesa; Applicant: Joseph Namasaka Nato
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 3 of 2013
- Procedural Posture
- Environment Case / Ruling on Interlocutory Application for Reinstatement and Substitution
- Outcome
- Application partly allowed.
- Legal Topics
- Reinstatement of Suit, Substitution of Parties, Abatement of Suit, Land Registration, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Nato
Plaintiff
Francis Simiyu Wekesa
Defendant
Joseph Namasaka Nato
Applicant
Procedural Posture
Environment Case / Ruling on Interlocutory Application for Reinstatement and Substitution
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the applicant should be substituted as plaintiff in place of the deceased original plaintiff.
- 3 Whether prayers for nullification and re-registration of land can be granted at the interlocutory stage.
Ratio Decidendi
The court found that although the suit had been dismissed for want of prosecution and no valid explanation was provided for the delay, the applicant had moved the court and, in the interests of fairness and justice, should be given an opportunity to be heard on the merits of the suit. The court held that reinstatement of the suit and substitution of the deceased plaintiff with the applicant were appropriate at this stage. However, the court declined to grant prayers for nullification and re-registration of the land, holding that such substantive issues must be determined at the hearing of the main suit and not through interlocutory applications. Costs of the application were awarded to...
Court Disposition
Application partly allowed.
Orders
- Prayer (a) for reinstatement of the suit is granted.
- Prayer (b) for substitution of the deceased plaintiff with Joseph Namasaka Nato is granted.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT CASE NO. 3 of 2013
WILSON NATO.........................……………............……… PLAINTIFF
VERSUS
FRANCIS SIMIYU WEKESA..........…..…DEFENDANT/RESPONDENT
AND
JOSEPH NAMASAKA NATO …......................................APPLICANT
RULING
1. The application up for ruling is the one dated 9th September 2010 brought by the Applicant JOSEPH NAMASAKA NATO. It seeks the following orders;
a) Reinstatement of the suit.
b) Plaintiff herein Wilson Nato now deceased be substituted and be replaced by Joseph Namasaka Nato the applicant herein.
c). That the L.R No. Bungoma/Kabisi/323 registered in the names of the defendant is nullified, deregistered and or revoked.
d) That the L/.R. No. Bungoma/Kabisi/323 be registered in the names of the applicant Joseph Namasaka Nato.
e). Costs be provided for.
2. The application initially had been granted as presented on 7th March 2012 by Chitembwe J. while the matter was still a Kakamega High Court file. Subsequently the Defendant filed an application dated 23. 7.2012 seeking to set aside the orders of the court of 7th March 2012. The Application dated 23. 7.2012 was allowed in terms of prayer (b) on 5th December 2012 again by Chitembwe J.
3. Thereafter this file was transferred to Bungoma High Court for hearing and determination. In the confusion when the application dated 9th September 2010 came for hearing, I was under the mistaken belief that this application had already been dispensed with wholly. I made a ruling that there was nothing more for me to determine. Mr. Ingotsi for the Defendant has since clarified this. I have perused the record a second time and confirmed that the orders allowing the application dated 9th September 2010 was already set aside on 5th December 2012.
4. The present application (dated 9. 9.2010) sought to reinstate the suit, substitute the deceased plaintiff among other prayers.The application is opposed and the Defendant submitted that prayer (c) & (d) cannot be granted at an application stage. The Defendant submitted that prayer (b) cannot be granted as the suit had abated on 11th February 1997. That no reason had been given why the suit was not prosecuted between 1990 – 2001. He urged the court to disallow the application.
5. The application had earlier been granted. To unseat the Applicant completely from the seat of justice he had earlier tasted will is quite harsh in my view. The other issue raised in opposition by the defendant is that the previous owner of the suit property was the settlement trust fund in terms of counting time for adverse possession. In my mind that is a matter that can only be determined during the hearing of the main suit and not in the interlocutory proceedings.
6. The Applicant also submitted that previously they were represented by Shitsama & Co. advocates hence he may not be able to explain why the suit took long before it was prosecuted. Although this suit was dismissed for want of prosecution in 2001 and no valid explanation has been offered. However given the applicant has moved the court, it is only fair and just that he is given a chance to be heard on merit of his suit. Consequently, I grant prayer (a) & (b) of the application. Prayer (c) & (d) are disallowed as the issues raised can only be ventilated during the hearing of the suit and not vide interlocutory mode. The costs of the application are awarded to the Defendant.
DATED, SIGNED and DELIVERED this 13th day of May 2014
A. OMOLLO
JUDGE.