REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI MILIMANI LAW COURTS E.L.C. CASE NO. 257 OF 2010 MOHAMMED SADIQUE ADAM……………………...…PLAINTIFF VERSUS JOHN NJUGUNA NDUATI……………………….....1ST DEFENDANT JOYCE WANJIRU KAMAU….……………....……..2ND DEFENDANT COMMISISIONER OF LANDS……..……..…….….3RD DEFENDANT RULING Through the application dated 5/12/2017 filed in court on 1/2/2018, the Plaintiff seeks to set aside the order made on 26/1/2015 dismissing his suit. The application is made on the grounds that the suit was dismissed when the Plaintiff failed to attend court. The Plaintiff died on 26/4/2014. His son, Habib Mohammed Sadique Adam wishes to substitute him as a Plaintiff. He obtained letters of administration ad litem on 22/7/2015. The 1st Defendant opposed the application arguing that it was res judicata and that the suit had abated in April, 2015. The 2 nd Defendant also opposed the application through the replying affidavit filed in court on 2/3/2018. She set out facts on the Plaintiff’s failure to prosecute the case leading to the dismissal of the suit on 27/1/2015. The 2 nd Defendant avers that the deceased Plaintiff ought to have been substituted within a year of his death and that no reasons were given by the Plaintiff for the failure to substitute the Plaintiff before the suit abated. The Defendants maintained that a suit that has abated does not exist. They further argued that the delay of 3 years and 10 months in bringing this application was inordinate. The court has considered the submissions of the parties and agrees with the Defendants that here was inordinate delay which is inexcusable in bringing this application. No reasons were given for the long delay in substituting the Plaintiff yet letters of administration were issued to the proposed Plaintiff way back in 2015. The application dated 5/12/2017 is dismissed with costs to the Defendants Dated and delivered at Nairobi this 28th day of November 2018. K. BOR JUDGE In the presence of: Ms. C. Karimi holding brief for Mr. McCourt for the 2nd Defendant Mr. V. Owuor- Court Assistant No appearance for the Plaintiff, 1st and 3rd Defendants
Original judgment
Mohammed Sadique Adam v John Njuguna Nduati & 2 others [2018] KEELC 437 (KLR)
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