Ngubiru & 3 others v Gachewa (Environment & Land Case 169 of 2013) [2022] KEELC 3326 (KLR)

Environment and Land Court

9 June 2022

LKL. Komingoi

667 words in judgment

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The bottom line

What this practically means

Executive summary

This was a ruling on a Notice of Motion dated 10th January 2022 by the Defendant, Solomon Ireri Gachewa, seeking reinstatement for hearing on merit of his application dated 2nd March 2021, which had been dismissed by the court on 13th October 2021. The earlier application had sought to set aside a judgment delivered on 18th February 2021, entered after the Plaintiffs' case was heard ex parte. The application was supported by the applicant's affidavit and opposed by the 1st Plaintiff, Peter Githinji Ngubiru, who argued that reinstatement would serve no useful purpose and that the application was brought after inordinate delay. Reviewing the court record, the court found a persistent pattern of the defendant's lack of interest in prosecuting his case: the plaintiffs' suit was heard ex parte on 1st October 2018 in the presence of counsel holding brief for the defendant's advocate; repeated adjournments were sought for settlement between 2018 and 2019; the defendant failed to appear on 7th December 2020 when the matter was set down for judgment; and the application to set aside that judgment was itself never prosecuted and was dismissed on 13th October 2021. The reinstatement application, filed about three months later, was held to have been brought after undue and unexplained delay. The court further found that the defendant's own defence admitted execution of the sale agreements, so setting aside the judgment would serve no purpose, and that the plaintiffs ought to enjoy the fruits of their judgment. The motion was dismissed with costs to the Plaintiffs.

Key legal issues

Whether the defendant's application to reinstate the dismissed application of 2nd March 2021 should be granted

Holding

The application was dismissed. The court found inordinate, unexplained delay of about three months in filing the reinstatement application, and that reinstating or setting aside the judgment would serve no purpose given the defendant's own defence.

Reasoning

The court reviewed the record and found a consistent pattern of the defendant's lack of interest in prosecuting his case: the plaintiffs' case was heard ex parte in 2018 in the presence of counsel holding brief, repeated adjournments were sought for settlement, and no appearance was made on 7th December 2020 leading to judgment. The subsequent application to set aside judgment was itself not prosecuted and was dismissed. The three-month delay in seeking reinstatement was unexplained, and the defence on record admitted execution of the sale agreements, so reinstatement would be futile.

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Legal principles established

A litigant who seeks reinstatement of a dismissed application must explain any delay in bringing the reinstatement application
A successful plaintiff is entitled to enjoy the fruits of judgment where setting aside would serve no useful purpose

Court orders

1.The Notice of Motion dated 10th January 2022 is dismissed
2.Costs of the application awarded to the Plaintiffs

Authorities

Legislation

Judicature Actsection 10
High Court (Practice and Procedure) Rulesrule 3(1) and (2)
High Court (Organization and Administration) (General) Rules, 2016Part III
Civil Procedure Actsections 3A, 3B
Civil Procedure RulesOrder 42 rule 6; Order 12 rule 6; Order 11

Jurisdiction invoked: Section 10 of the Judicature Act, sections 3A and 3B of the Civil Procedure Act, Order 42 rule 6 and Order 12 rule 6 of the Civil Procedure Rules, and Part III of the High Court (Organization and Administration) (General) Rules, 2016

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ngubiru & 3 others v Gachewa (Environment & Land Case 169 of 2013) [2022] KEELC 3326 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3326/eng@2022-06-09

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