Please Wait. Searching ...
Nyamatura v Nath & 3 others (Petition 26 of 2011) [2023] KEELC 15976 (KLR) (8 March 2023) (Ruling)
Neutral citation:
[2023] KEELC 15976 (KLR)
Republic of Kenya
Petition 26 of 2011
M Sila, J
March 8, 2023
Between
Joseph Obae Nyamatura
Petitioner
and
Ruthvaal Rajwal Nath
1st Respondent
Ajiwa Shamji Co. Limited
2nd Respondent
The Land Registrar, Kisii
3rd Respondent
The Hon. Attorney General
4th Respondent
(Application to reinstate the dismissed suit; counsel being absent when the matter came up for hearing and the court dismissed the suit for non-attendance; suit reinstated subject to payment of throw away costs)
Ruling
1.The application before me is that dated 18 July 2022 filed by the petitioner. The application prays that the orders of 14 July 2022 dismissing this suit be set aside and the petition be reinstated for hearing. The application is opposed.
2.The background is that through a petition filed on 23 April 2011, the petitioner sued the respondents contending to be the rightful owner of the land parcel West Kitutu/Bogeka/1515. He claimed to have purchased the land from one Mzee Ogato Nyandwaro. He averred that he also purchased another portion measuring 70 X 150 feet from Mzee Nyandwaro out of the parcel No. 1514. He avers that the respondents also purchased a portion of the said parcel No. 1514 from Mzee Nyandwaro that was adjacent to what he purchased. He complained that the respondents obtained the titles West Kitutu/Bogeka/1730 and 1731 which alienated this portion of 70 X 150 feet that he claims to have purchased. He asserts that this was unconstitutional and infringed on his rights to property under Article 40 of the constitution.
3.The court directed that the matter be heard by way of viva voce evidence. I see that the petitioner did partly testify on 17 February 2016 before Mutungi J, but he did not complete his evidence in chief, owing to some objections raised on production of documents. On 27 March 2019, the petitioner withdrew suit against the 1st respondent. The matter proceeded again on 21 April 2021, now before Onyango J, when the petitioner completed his evidence and owing to time the matter was adjourned to 27 September 2021. On that day, Mr. Sagwe, learned counsel for the petitioner was absent and the matter was adjourned to 3 March 2022. Mr. Sagwe was present but, counsel for the 2nd respondent applied for adjournment, as Mr. Nyamurongi, appearing for the 2nd respondent, was not available on that day on personal issues. The matter was adjourned to 14 July 2022. On that day, Mr. Sagwe did not appear. The court placed the file aside but Mr. Sagwe had not shown up by 1.00pm. The court noted that the Court Assistant had tried to reach Mr. Sagwe who said he was in Kilgoris court. The court was of view that this is an old case and due to absence of counsel, proceeded to dismiss the suit for non-attendance.
4.It is this order of dismissal that the petitioner seeks to set aside so that he can be heard on merits. The supporting affidavit is sworn by the petitioner. He deposes that his advocate was engaged in Kilgoris Court. He states that he was ready on the day with witnesses. He avers that the mistakes of his counsel ought not to be visited upon him.
5.To oppose the motion, the 2nd respondent filed Grounds of Opposition. It is inter alia averred that there has been delay in prosecution of the petition caused by the petitioner. It is added that the date was taken by consent.
6.I have considered the application. What the petitioner wants is to have his dismissed suit reinstated. As far as I can see, it was his counsel who was absent on the day, as he was in Kilgoris Court. His absence is not well grounded for he could as well have delegated the matter to another counsel to proceed or hold his brief. He did neither. However, it will be seen that the petitioner has been keen in prosecuting his case and has even testified. I think it is only fair that he be granted a chance to finalise the hearing of his case. The mistakes of his counsel ought not to be visited upon him.
7.I will reinstate his case subject to payment of Kshs. 7,500/= as thrown away costs to counsel who were present on 14 July 2022 within 30 days from today.
8.I make no orders as to the costs of this application.
9.Orders accordingly.
DATED AND DELIVERED THIS 8 DAY OF MARCH 2023JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURT
