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ELCOtherChuka ELC (C.A) Case No. 14 of 2017 (formerly Meru Civil Appeal No. 1 of 2011)· [2020] KEELC 780 (KLR)

Jacob Njeru Karuku (suing as the legal representative) Kariuki Gitabu Hosea v Njagi Njuguna [2020] KEELC 780 (KLR)

Environment and Land Court of Kenya at Chuka
2 November 2020
PNP. M. Njoroge
1,573 words in judgment
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The bottom line

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A Chuka land court allowed a new advocate to take over an appeal dismissed without the owner being served, but will decide reinstatement later.

What this practically means

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Executive summary

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The appellant, Jacob Njeru Karuku, moved the Environment and Land Court at Chuka by notice of motion dated 27th October 2020 seeking, among other things, that the firm of Murango Mwenda & Company Advocates be allowed to come on record in place of I. C. Mugo & Company Advocates, that the dismissal order issued on 5/4/2017 be set aside, and that the appeal be reinstated for hearing on merit. The appeal, originally filed in the High Court at Meru as Meru Civil Appeal No. 1 of 2011 against the decision of the Eastern Provincial Appeals Committee in Provincial Appeals Committee No. 124 of 2009 delivered on 5/11/2010, was transferred to the ELC at Chuka and assigned the number Chuka ELC (C.A) Case No. 14 of 2017. It was dismissed on 5/4/2017 for want of prosecution after a Notice to Show Cause, which the applicant says was never served on him or his advocates. He deponed that he only learnt of the dismissal when served on 13/10/2020 with the respondent's application in Chuka CM L.D.T Case No. 15 of 2009 seeking his eviction from the suit land. At the ex-parte stage, counsel sought only prayers 1 and 2. The court, P. M. Njoroge J, granted those prayers, directed service of the application on the respondent within 7 days, and fixed the application for inter partes hearing on 17.11.2020. The substantive prayers to set aside the dismissal and reinstate the appeal remain pending and were not determined.

Key legal issues

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01

Change of advocates on record

Holding

The incoming firm was allowed to come on record for the appellant/applicant at the ex-parte stage

Reasoning

Counsel for the applicant sought prayers 1 and 2 only at the ex-parte stage so that the new firm could take over the conduct of the matter from the outgoing firm before serving the application for inter partes hearing. The court granted these prayers in the interest of justice and directed service of the application on the respondent within 7 days, with the inter partes hearing set for 17.11.2020.

p. 3
02

Setting aside dismissal for want of prosecution without service of the Notice to Show Cause

Holding

Not yet determined; the substantive prayers are reserved for the inter partes hearing

Reasoning

The applicant depones that neither he nor his advocates were served with the Notice to Show Cause issued before the dismissal on 5/4/2017, and that he only learned of the dismissal when served on 13/10/2020 with the respondent's eviction application in Chuka CM L.D.T Case No. 15 of 2009. The court did not rule on these substantive prayers, which remain pending the inter partes hearing.

p. 3

Legal principles established

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  • A dismissal for want of prosecution may be set aside where the party was not served with the Notice to Show Cause, and a party should not be denied an opportunity to be heard on merit

Court orders

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  1. 1.Prayer 1 granted: the application certified urgent and heard ex-parte in the first instance
  2. 2.Prayer 2 granted: the firm of M/S Murango Mwenda & Company Advocates allowed to take over conduct of the matter from the firm of I. C. Mugo & Company Advocates and come on record for the appellant/applicant
  3. 3.The applicant directed to serve the application upon the respondent within 7 days
  4. 4.The application to be heard inter partes on 17.11.2020
On appeal from
Eastern Provincial Appeals Committee
Provincial Appeals Committee No. 124 of 2009
Jurisdiction invoked
First-instance appellate/revisional jurisdiction of the Environment and Land Court over an appeal against a decision of the Eastern Provincial Appeals Committee under the Land Disputes Tributes regime; matter transferred from the High Court at Meru to the ELC at Chuka

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jacob Njeru Karuku (suing as the legal representative) Kariuki Gitabu Hosea v Njagi Njuguna [2020] KEELC 780 (KLR)", Case Analysis (2020). Chuka ELC (C.A) Case No. 14 of 2017 (formerly Meru Civil Appeal No. 1 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/780/eng@2020-11-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.