1.The notice of motion dated 22nd June 2023 filed under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules seeks the following prayers;
2.The application is premised on the grounds on its face and is supported by the affidavit of Wilson Kigen sworn on 22nd June 2023. He deposes that the matter was coming up for mention on 20th June 2023 but he failed to log in at around 9:40 a.m. as there was a technical hitch and poor internet connection.
3.That he later visited Iten Law Courts registry and was informed that the plaintiff’s suit had been dismissed for non-attendance; that failure to attend court virtually was due to circumstances beyond his control and was non-deliberate. He states that unless the prayers sought are granted, the plaintiff/applicant will suffer substantial loss as the respondents have already encroached onto substantial portions of the plaintiff’s parcel of Land; that the County surveyor was to visit the suit parcels on the 27th July, 2023 and it would only be just and fair if the matter is reinstated. He prays that if the suit is reinstated, the same be transferred to Kabarnet Environment & Land Court Sub registry as the suit property is situated in Baringo.
4.The application is not opposed.
6.The plaintiff filed the instant suit on 17th April 2017. In paragraph 4 of his plaint, the plaintiff alleges that the 1st defendant who is the registered proprietor of parcel No. Sacho/Kabarnet/351, has encroached onto his land parcel Sacho/Kabarnet/352. He seeks an order of permanent jurisdiction to restrain the defendants by themselves, agents and/or servants from interfering, trespassing, intermeddling and/or in any other manner dealing with the plaintiff’s use, occupation, possession and/or ownership of parcel No. Sacho/Kabarnet/352.
7.On 30th January 2019, Odeny J delivered a ruling as follows;
9.In applying the above holding to the circumstances of this case, it is my considered view that this court still lacks jurisdiction to hear and determine the suit. Consequently, I find the application unmerited and I dismiss it with no orders as to costs as the application was not defended.