REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAJIADO

ELC NO. 690 OF 2017

LAWRENCE NGINYO KARIUKI………………..............……….PLAINTIFF

-VERSUS-

1. THE  ATTORNEY GENERAL                                                                            

2. CAROLYNE GACHERU THURANIRA (sued as the administrator               

of the  Estate of the late FRANCIS MURIUKI THURANIRA                               

3. MOMANYI BOSIRE                                                                                              

4. PRISCILLA WANJIRU NJOROGE                                                                      

5. KENYA COMMERCIAL BANK LIMITED                                                         

6. SAMUEL ECHACHI SHIKUKU                                                                            

7. AFYA COOPERATIVE SACCO LIMITED                                                          

8. KENNEDY IRUNGU MWANGI                                                                             

9. KEVIN VICTOR BWIRE MUNANA AND MARGARET MUCHISA BWIRE

10. RACHEL WAIRIMU NJOROGE                                                                           

11. CYPRIAN KANAKE AMBAO                                                                               

12. STEPHEN WANG’OMBE KINUTHIA                                                               

13. PATRICK KIBE KAMAU AND GEORGE MUCHIRI KAMAU                       

14. SOPHY NDELA KAMATA                                                                                     

15. RISPER KERUBO NYAMETE                                                                               

16. PETER KINUTHIA GITURA WINNIE WANJIRU KARIUKI                           

17. EDWARD ELVIS NDIRANGU AND ESTHER WANGARI NDIRANGU         

18. DEBORAH OWIRA OTIENO                                                                                

19. PAUL JAMES OTIENO ODHIAMBO                                                                  

20. BARCLAYS BANK OF KENYA LIMITED...........................RESPONDENTS

21. JOHN MUCHANGI KARIGI                                                                               

22. GEORGE ABUOGO OWINO AND EUNICE MEYO ABUOGO                     

23. SAVINGS & LOAN KENYA LIMITED                                                            

24. GEORGE NDEGWA T/A GREEN PLOT PROPERTIES                               

AND

1. ZADARACK OYARO ACHOKI.............................1^ST INTERESTED PARTY

2. CLUDFE JOSEPH KAMATA.................................2^ND INTERESTED PARTY

3. MAXIMUM EKADA MAASE................................3^RD INTERESTED PARTY

4. STEPHANIA ACHOM............................................4^TH INTERESTED PARTY

5. HESKETH M. MBOTHU.........................................5^TH INTERESTED PARTY

RULING

This ruling is on the Notice of Motion dated 5/8/2021. 

The motion which is by counsel for the Interested Parties seeks orders as follows;

1. The suit has abated

2. The costs of defending the suit be awarded to the 1^st, 2^nd, 3^rd and 4^th interested parties.

3. That the said costs be recovered from the estate of the deceased.

The application which is under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 24 Rules 3(1) and (2) Civil Procedure Rules and all enabling provisions of the law is grounded on the following amongst others;

a. That the Plaintiffs died on 24/2/2020

b. That no application has been made under Section 3(1) for the legal representatives to be appointed

c. That proceedings once commenced must come to an end

d. That the overriding objective of the Environment and Land Court Act is to enable the Court facilitate the first determination of Environment and land cases.

e. That the case has been pending in Court for 11 years and this is expensive to the parties.

The application is supported by an affidavit sworn by Maximinus Ekada Maase the 28^th Interested Party in which he deposes that this case has been pending in Court for over 11 years and the Plaintiff’s heirs are not keen in prosecuting it hence the delay which is oppressive to the other parties who continue incurring costs and suffer anxiety.

The application though served is unopposed.

I have carefully considered the application in its entirety and I find that it has merit for the following reasons;

Firstly, under Order 24 Rule 3(2) Civil Procedure Rules, it is provided as follows

“Where within one year no application is made under Sub Rule (1), the suit shall abate so far as the deceased is concerned and, on the application of the Defendant, the Court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased Plaintiff.”

Secondly, it is contrary to the overriding objective of the law to keep a land case pending in Court inordinately.  This is especially so when one considers Section 3 of the Environment and Land Court Act which provides;

1. “The overriding objective of this Act is to enable the Court to facilitate the just, expeditious and accessible resolution of disputes governed by this Act.

2. The Court shall, in the discharge of its functions under this Act give effect to the Principal object in Subsection (1)

There is no good reason why this case should be pending in Court.  The family of the deceased Plaintiff is guilty of inordinate delay.

For the above stated reasons, I allow the Notice of Motion dated 5^th August, 2021 in its entirety.

DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 16^TH DAY OF

DECEMBER, 2021

M.N. GICHERU

JUDGE