Case ID:169513

Joseph Mwangangi Muunda v Stephen Ndoo Muindi & another [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 151 of 2017

Parties:

Joseph Mwangangi Muunda v Stephen Ndoo Muindi & Anna Muindi Muthama

Date Delivered:

29 Jan 2021

Case Class:

Civil

Court:

Environment and Land Court at Makueni

Case Action:

Ruling

Judge(s):

Charles Gitonga Mbogo

Citation:

Joseph Mwangangi Muunda v Stephen Ndoo Muindi & another [2021] eKLR

Court Division:

Environment and Land

County:

Makueni

Case Outcome:

Application struck out

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 MAKUENI

ELC CASE NO. 151 OF 2017

JOSEPH MWANGANGI MUUNDA..............PLAINTIFF/RESPONDENT

-VERSUS-

STEPHEN NDOO MUINDI......................1

ST

DEFENDANT/APPLICANT

ANNA MUINDI MUTHAMA..................2

ND

DEFENDANT/APPLICANT

RULING

1. The application for determination is dated 17

th

September, 2020 filed by the Defendants/Applicants under certificate of urgency. It is brought under Order 45 Rule 1 of the Civil Procedure Rules, 2010.

2. The Applicants seek the following Orders:

i)

Spent.

ii)

Spent.

iii)

That the Judgment delivered on 26

th

November, 2018 by Honourable Justice Mbogo C.G. be reviewed and or set aside.

3. The application is supported by the affidavit of Stephen Ndoo Muindi sworn on 17

th

September, 2020 on his behalf and that of his Co-defendant. The basis of the application is that there are apparent errors on the face of the record and that those errors are prejudicial to the Defendants.

4. The Plaintiff/Respondent has opposed the application vide the grounds of opposition dated 14

th

October, 2020. He argues that there has been an inordinate delay in bringing the application herein and that such delay has not been explained. He also argues that the application is misconceived and an abuse of court process.

5. Both parties filed their respective submissions. In their submissions dated 19

th

November, 2020, the Applicants reiterated that there are sufficient reasons to warrant grant of review orders against the judgment dated 26

th

November, 2018. No case law has been cited in support thereof. The Defendants/Applicants pray that the application be allowed as prayed.

6. In the Plaintiff’s/Respondent’s submissions dated 22

nd

October, 2020, three issues have been formulated for determination by this Court. These are;

i) whether the Applicants have established sufficient cause for the orders to be granted,

ii) whether the Applicants’ counsel is properly on record and

iii) whether there has been inordinate delay in filing the application hereof.

7. I have perused the parties’ respective pleadings. I am cognizant of the fact that I delivered a Ruling herein dated 19

th

February, 2018 dismissing the Defendants’ application dated 28

th

June, 2013. The said application was dismissed on the grounds that Messrs. R.A. Ochuru & Co. Advocates herein for the Defendants had not obtained leave of court to come on record in place of Messrs. Mwania Mbithi & Co. Advocates long after interlocutory judgment had been entered on or about 8

th

May, 2012.

8. Order 9 Rule 9 of the Civil Procedure Rules, 2010 is predicated in mandatory terms. It sets out as follows:

“When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person

shall not

be effected

without an order of the Court

-

(a) upon an application with notice to all the parties; or

(b) upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be.”

9. It is unfortunate that the firm of Messrs. R.A. Ochuru & Co. Advocates has not taken the necessary interventions to cure the above defect in the Defendants’ case. I cannot therefore address any of the prayers sought in this application.

10. The upshot of the foregoing is that the application is an abuse of court process and is hereby struck out with costs.

Signed, dated and delivered at Makueni via email this 29

th

day of January, 2021.

..............................

MBOGO C.G.

JUDGE

Court Assistant: Mr. Kwemboi