[2020] KEELC 2992 (KLR)
The court found that the plaintiff's director alleged non-receipt of the notice to show cause, and this was not expressly denied by the previous advocate. The court noted that the issues in the present suit were similar to those in two other pending matters involving the same parcel of land, and that consolidation...
Source-derived case information.
- Citation
- [2020] KEELC 2992 (KLR)
- Parties
- Plaintiff: Wisdom Property Agencies Limited; Defendant: Keziah Mumbi Paul; Defendant: Francis Mwanzia Mulwa; Defendant: Kitangila Limited; Defendant: Chief Registrar of Titles; Defendant: County Government of Machakos; Defendant: Nirish Chadunlal Shah; Defendant: Mavoko Sub County; Defendant: National Land Commission
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 169 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review, Reinstatement, and Consolidation
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Consolidation of Suits, Service of Notice, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wisdom Property Agencies Limited
Plaintiff
Keziah Mumbi Paul
Defendant
Francis Mwanzia Mulwa
Defendant
Kitangila Limited
Defendant
Chief Registrar of Titles
Defendant
County Government of Machakos
Defendant
Nirish Chadunlal Shah
Defendant
Mavoko Sub County
Defendant
National Land Commission
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Review, Reinstatement, and Consolidation
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be reviewed, varied or set aside.
- 2 Whether the suit should be reinstated for hearing and determination.
- 3 Whether the suit should be consolidated with related matters involving the same property.
Ratio Decidendi
The court found that the plaintiff's director alleged non-receipt of the notice to show cause, and this was not expressly denied by the previous advocate. The court noted that the issues in the present suit were similar to those in two other pending matters involving the same parcel of land, and that consolidation would serve the interests of justice and judicial economy. The absence of opposition from the defendants further supported the grant of the orders sought. The court exercised its discretion to set aside the dismissal, reinstate the suit, and order consolidation, holding that the mistake of counsel should not be visited upon the client and that the matters should be heard...
Court Disposition
application allowed
Orders
- Leave granted to Muma & Kanjama Advocates to come on record for the plaintiff in place of Kangori & Company Advocates.
- The order dismissing the suit on 28th February, 2019 and all consequential orders are reviewed, varied and set aside.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 169 OF 2014
WISDOM PROPERTY AGENCIES LIMITED...............................PLAINTIFF
VERSUS
KEZIAH MUMBI PAUL.........................................................1ST DEFENDANT
FRANCIS MWANZIA MULWA...........................................2ND DEFENDANT
KITANGILA LIMITED........................................................3RD DEFENDANT
CHIEF REGISTRAR OF TITLES.......................................4TH DEFENDANT
COUNTY GOVERNMENT OF MACHAKOS ...................5TH DEFENDANT
NIRISH CHADUNLAL SHAH.............................................6TH DEFENDANT
MAVOKO SUB COUNTY.....................................................7TH DEFENDANT
NATIONAL LAND COMMISSION....................................8TH DEFENDANT
RULING
1. In the Application dated 15th July, 2019, the Plaintiff is seeking for the following orders:
a.That leave be granted to the firm of Muma & Kanjama Advocates to come on record for the Plaintiff in place of Kangori & Company Advocates.
b.That the order of the Honourable Justice O. Angote issued on 28th February, 2019 dismissing the suit herein together with all other consequential orders be reviewed varied and/or set aside.
c.That the suit filed on 17th November, 2014 be reinstated for expeditious hearing and determination by this Honourable Court.
d.That this suit be consolidated with Machakos ELC. Case No. 162 of 2015 and Machakos ELC. No. 282 of 2012.
2. The Application is supported by the Affidavit of the Plaintiff’s Director who has deponed that his previous advocate, Kangori and Company Advocates, never received the Notice to show cause why the suit should not be dismissed for want of prosecution; that as a result of non-service of the notice, the Applicant was denied an opportunity to show cause why the suit should not be dismissed and that the mistake of counsel should not be visited upon his client.
3. The Plaintiff’s Director deponed that the suit land in this suit is similar to the suit land in Machakos ELC. No. 162 of 2015 and ELC. No. 282 of 2012, Machakos; that the suits raise similar questions of fact and law and that the suits arise from the same set of facts and evidence that involve the same parcel of land being L.R. No. 10426/7 and its adjacent sub-divided properties.
4. The Plaintiff’s Director finally deponed that it is in the interest of justice and expeditious disposal of these matters that the suits should be consolidated and be heard together and that the order for dismissal of this suit was made without any fault of the Applicants.
5. The Application by the Plaintiff was not opposed. The Applicant did not file submissions but relied on his Affidavit.
6. This matter was filed in the High Court at Machakos in the year 2014. Due to the absence of an Environment and Land Court Judge in Machakos, the file was transferred to Nairobi before it was re-transferred to Machakos on 14th April, 2017.
7. From the record, the Plaintiff did not fix the matter for hearing or pre-trial. Vide a Notice dated 16th January, 2019, the court on its own Motion notified the parties that they should attend court on 28th February, 2019 to show cause why the suit should not be dismissed for want of prosecution.
8. When the matter came up for notice to show cause why it should not be dismissed for want of prosecution on 28th February, 2019, neither the Plaintiff nor its advocate attended court. It is only the Defendants’ advocate who attended court and asked the court to dismiss the suit for want of prosecution, which the court obliged.
9. The Plaintiff’s Director has deponed that his former advocate did not receive the Notice to show cause why the suit should not be dismissed dated 16th January, 2019. However, the advocate to whom the Notice was addressed to has not stated so, either by way of a letter or an Affidavit. Indeed, the Plaintiff’s advocate has not denied that the postal address indicated in the Notice to show cause is his, or that he has never received the said Notice in his postal address.
10. The Plaintiff has stated that the issues herein relate to the issues in Machakos ELC. Nos. 162 of 2015 and ELC. No 282 of 2012. This disposition has not been denied by the Defendants. Considering that there are other matters concerning the suit property, I shall allow the Plaintiff’s Application so as to enable the court to deal with the issues in dispute in respect to the suit property at once.
11. For those reasons, I allow the Application dated 15th July, 2019 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 24TH DAY OF APRIL, 2020.
O.A. ANGOTE
JUDGE