Case ID:158647

Silas Kinyua M’mweti v Land Adjudication And Settlement Officer Igembe District & 2 others;Consolata Kabutia M’imweti & 19 (Interested Parties) [2020] eKLR

Case Metadata

Case Number:

Environment and Land Petition 7 of 2010

Parties:

Silas Kinyua M’mweti v Land Adjudication And Settlement Officer Igembe District & 2 others;Consolata Kabutia M’imweti & 19 (Interested Parties)

Date Delivered:

20 May 2020

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Ruling

Judge(s):

Lucy Ngima Mbugua

Citation:

Silas Kinyua M’mweti v Land Adjudication And Settlement Officer Igembe District & 2 others;Consolata Kabutia M’imweti & 19 (Interested Parties) [2020] eKLR

Court Division:

Environment and Land

County:

Meru

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC PETITION NO. 7 OF 2010

IN THE MATTER OF ARTICLES 22 (1) & (4), 23 (1) & (3)

AND ARTICLE 40 OF THE CONSTITUTION OF KENYA

BETWEEN

SILAS KINYUA M’MWETI.....................................................................PETITIONER

VERSUS

THE LAND ADJUDICATION AND SETTLEMENT OFFICER

IGEMBE DISTRICT........................................................................1

ST

RESPONDENT

THE DIRECTOR LAND

ADJUDICATION AND

SETTLEMENT.......................................2

ND

RESPONDENT

THE DEMARCATION OFFICER

AKIRANG’ONDU ‘A’ ADJUDICATION

SECITON..................3

RD

RESPONDENT

AND

CONSOLATA KABUTIA M’IMWETI..............................1

ST

INTERESTED PARTY

M’MUNJURI THIRAGNE.................................................2

ND

INTERESTED PARTY

SILAS MURIUKI KARITHO............................................3

RD

INTERESTED PARTY

THIAURI M’MUKARIA....................................................4

TH

INTERESTED PARTY

GEOFFREY MIRITI M’ITHANGATHA..........................5

TH

INTERESTED PARTY

JULIUS ‘M’IMPUI M’IMWETI......................................6

TH

INTERESTED PARTY

SILAS MUROUKI M’IMAINGI.......................................7

TH

INTERESTED PARTY

HENRY KIBAARA M’IMWETI.......................................8

TH

INTERESTED PARTY

DIOCESE OF MERU TRUSTEES

REGISTERED

(Thro’ Father BENARD MUTHOMI.....9

TH

INTERESTED PARTY

JOSEPH MUTUMA M’IMWETI...................................10

TH

INTERESTED PARTY

IRUKI M’KAIRIAMA......................................................11

TH

INTERESTED PARTY

GEOFFREY MANYORE KOOME.................................12

TH

INTERESTED PARTY

MBAABU M’MWERERIA..............................................13

TH

INTERESTED PARTY

MITHIKA MWENDA......................................................14

TH

INTERESTED PARTY

KIAMBA MUTUMA........................................................15

TH

INTERESTED PARTY

STEPHEN UNGU.............................................................16

TH

INTERESTED PARTY

KINYUA KARIITHO......................................................17

TH

INTERESTED PARTY

TIMOTHY MPEKETHU................................................18

TH

INTERESTED PARTY

JOYCE KANANU PAUL...............................................19

TH

INTERESTED PARTY

STANLEY NCURE..........................................................20

TH

INTERESTED PARTY

RULING

1. Vide the application filed on 19.11.2019, the petitioner/applicant is seeking for the reinstatement of this suit which was dismissed on 7.11.2019 for non-attendance. It is contended that the failure to attend court by the advocate for the petitioner was neither done intentionally nor contumeliously. The counsel for the petitioner was sick.

2. The interested parties have opposed the application through the replying affidavit of the 8

th

interested party filed in court on 3.2.2020. They contend that the advocate for the petitioner is not properly on record, that the petitioner has conducted this matter in a casual manner and that the matter has been in court or a period of over 10 years.

3. It was argued for the interested parties that the counsel for petitioner has been economical with the truth as he says he was hospitalized but he doesn’t appear to have communicated this issue to his client (petitioner). The interested parties therefore aver that there are no sufficient grounds to warrant the reinstatement of the suit and the application ought to be dismissed.

4. In the case of

Mwangi S. Kaimenyi vs Attorney General (2014) eKLR

– Gikonyo J. restated the legal considerations on matters reinstatement of suit as follows;

“

1) When the delay is

prolonged and inexcusable, such that it would cause grave injustice to

the one side or the other or to both, the court may in its discretion dismiss the action straight

away. However, it should be understood that prolonged delay alone should not prevent the court

from doing justice to all the parties- the plaintiff, the Defendant and any other third or interested

party in the suit; lest justice should be placed too far away from the parties. 2) Invariably, what should matter to the court, is to serve substantive justice through

judicious exercise of discretion which is to be guided by the following issues; 1) whether the delay has been intentional and contumelious; 2) whether the delay or the conduct of the plaintiff

amounts to an abuse of the court; 3) whether the delay is inordinate and inexcusable; 4) whether

the

delay is one that gives rise to a substantial risk to

fair trial in that it is not possible to have a

fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and 5)

what prejudice will the dismissal cause to the plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the

parties

”

.

5. I have keenly considered the circumstances of this case. The matter is quite old having been filed in year 2010. However the hearing finally took off on 9.10.2018. Thereafter, the counsel for petitioner just left without any application to cease acting. The firm of Mutembei & Co. took over the matter with Mr. Mutembei promising to regularize the issue of representation.

6. The records indicate that on the date matter was dismissed, petitioner was actually present in court and he was given sometime by the court to look for his advocate but he was not successful prompting the court to dismiss the matter at 10.50 am on that day of 7.11.2019. I would not term the petitioner as an indolent litigant.

7. In the case of

Martha Wangari Karua vs IEBC Nyeri civil appeal no. 1 of 2017

, the Court of Appeal held that:

“The rules of natural justice require that the court must not necessarily drive any litigant from the seat of justice without hearing, however weak his or her case may be”.

8. In the present case, I am inclined to find that the petitioner had at least made an effort to be in court on the date of hearing.

9. Turning to the issue of the advocate for the petitioner, no explanation has been advanced as to why the advocate did not communicate his predicament to his client as well as the advocate on the opposite side. Nevertheless, I have no reasons to doubt that Mr. Mutembei was sick. In the case of

Lucy Bosire vs Kehancha Div Land Dispute Tribunal & 2 others (2013) eKLR

the court held that:

“It must be recognized that blunders will continue to be made from time to time and it does not follow that because a mistake has been made, a party should suffer the penalty of

not having his case determined on merits …………”.

10. On the issue of appointment of petitioner’s advocate, I note that the transition from the previous advocate Uungu & Co to the new advocate was rather unconventional and informal. Mr. Mutembei simply said he was taking over the case. The notice of appointment though dated 18.11.2019, was not filed until 3.2.2020. Article 159 (2) (d) implores this court to administer justice without undue regard to procedural technicalities. Noting that Mr. Mutembei was in court on 1.10.2019, and that he fell sick thereafter, I will consider that the error for not filing the notice of appointment in time was not intentional.

11. In conclusion, I allow the application dated 18.11.2019 on the following terms:

1) The suit is reinstated but petitioners will not be granted any adjournment once the matter is set down for hearing.

2) Petitioner is to meet costs of this application.

DATED, SIGNED AND DELIVERED AT MERU THIS 20

TH

DAY OF MAY, 2020

HON. LUCY. N. MBUGUA

ELC JUDGE

ORDER

The date of delivery of this ruling was given to the parties at the conclusion of the hearing and by a fresh notice by the Deputy Registrar. In light of the declaration of measures restricting court operations due to the

COVID-19

pandemic

and following the practice directions issued by his Lordship, the Chief Justice dated 17

th

March, 2020 and published in the Kenya Gazette of 17

th

April 2020 as Gazette Notice no.3137, this ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open court.

HON. LUCY N. MBUGUA

ELC JUDGE