Case ID:185641

Kenya Anti-Corruption Commission v Gigiri Court Limited & 3 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 1571 of 2007

Parties:

Kenya Anti-Corruption Commission v Gigiri Court Limited, John Joseph Kamotho, Wilson Gachanja & James Raymond Njenga

Date Delivered:

11 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Nairobi

Case Action:

Ruling

Judge(s):

Loice Chepkemoi Komingoi

Citation:

Kenya Anti-Corruption Commission v Gigiri Court Limited & 3 others [2021] eKLR

Advocates:

Ms Maina for the Plaintiff

Ms Kibore for the 1st Defendant

Ms Muriithi for Mrs. Omutimba for the 3rd Defendant

Court Division:

Environment and Land

County:

Nairobi

Advocates:

Ms Maina for the Plaintiff

Ms Kibore for the 1st Defendant

Ms Muriithi for Mrs. Omutimba for the 3rd Defendant

History Advocates:

One party or some parties represented

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 NAIROBI

ELC CASE NO.1571 OF 2007

KENYA ANTI-CORRUPTION COMMISSION….…………….……..PLAINTIFF

VERSUS

GIGIRI COURT LIMITED……….…………………………..….1

ST

DEFENDANT

JOHN JOSEPH KAMOTHO.…………………………………....2

ND

DEFENDANT

WILSON GACHANJA………………………………………...…3

RD

DEFENDANT

JAMES RAYMOND NJENGA…………………………………..4

TH

DEFENDANT

RULING

1.

This is the Notice of Motion dated 3

rd

March 2021 brought under the provisions of section 1A, 1B and 3A of the Civil Procedure Act 2010, order 17 rule 2(1) and (2) and Order 51 rule 1 of the Civil Procedure Rules 2010.

2.

It seeks orders:-

1. Spent.

2. That this honourable court be pleased to set aside the orders issued on 19

th

October 2020 dismissing the suit herein.

3. That the suit herein be reinstated.

4. That the costs of this application be in the cause.

3.

The grounds are on the face of the application and are set out in paragraphs (a) to (i).

4.

The application is supported by the affidavit of Grace Maina, Advocate for the Plaintiff, sworn on the 3

rd

March 2021.

5.

The application is opposed. There are grounds of opposition filed by the 1

st

Defendant/Respondent dated 7

th

April 2021. There are also grounds of opposition filed by the 3

rd

Defendant dated 12

th

March 2021. It appears the 2

nd

and the 4

th

Defendants did not file any responses.

6.

On the 28

th

June 2021, the court with the consent of parties directed that the notice of motion be canvassed by way of written submissions.

7.

I have considered the notice of motion and the affidavit in support. I have considered the grounds of opposition, the written submissions filed on behalf of the parties and the authorities cited. The issue for determination is whether this application is merited.

8.

I have considered the circumstances of this case. The cause of action is public land that was unlawfully acquired by the 2

nd

Defendant and subsequently transferred to the 1

st

Defendant. This is indeed a matter of public interest touching on public land. It ought to be heard on merit.

9.

In the case of

Mwangi S. Kimenyi vs Attorney General & Another [2014] eKLR

Gikonyo J stated that:-

“………………..And I stated earlier, dismissal of a case is a draconian judicial act which drives the plaintiff away from the seat of justice. It should be done sparingly and in cases where dismissal is the feasible and just thing to do. Therefore, courts should strive to sustain suits rather than dismiss them especially where justice would still be done and fair trial had despite the delay. Any explanation for the delay which is given should be properly evaluated by the court to see whether it is reasonable”.

I am guided by the above authority in finding that the Plaintiff’s case ought to be heard on its merits.

10.

No prejudice will be occasioned to the Defendants if this suit is heard to conclusion.

11.

In conclusion, I find merit in this application and the same is allowed. The Plaintiff is directed to expeditiously set down the suit for hearing so that the issues herein can be resolved.

12.

Accordingly, I make the following orders:-

(a) That the orders issued on 19

th

October 2020 dismissing the suit are hereby set aside.

(b) That the suit is reinstated.

(c) That costs of this application do abide the outcome of the main suit.

It is so ordered.

Dated, signed and delivered in Nairobi on this 11

th

day of November 2021.

……………………….

L. KOMINGOI

JUDGE

In the presence of:-

Ms Maina for the Plaintiff

Ms Kibore for the 1

st

Defendant

No appearance for the 2

nd

Defendant

Ms Muriithi for Mrs. Omutimba for the 3

rd

Defendant

Steve - Court Assistant