Ngiria v Ouko & 2 others (Environment & Land Case 397 of 2011) [2023] KEELC 17570 (KLR) (11 May 2023) (Ruling) Neutral citation: [2023] KEELC 17570 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ENVIRONMENT & LAND CASE 397 OF 2011 LN MBUGUA, J MAY 11, 2023 BETWEEN JOSEPH KAMAU NGIRIA ....................................................................... PLAINTIFF AND ROSELYN DOLA OUKO ................................................................. 1ST DEFENDANT AARON TAFARI OUKO ................................................................ 2ND DEFENDANT ANDREW ATINDA OUKO ........................................................... 3RD DEFENDANT RULING 1. Judgement was entered in this matter on February 21, 2019 where the plainti’s suit was dismissed. The plainti led a notice of motion application dated February 5, 2020 seeking orders to review the said judgement which application was dismissed by this court on September 28, 2022 for none compliance with court orders. 2. Subsequently, the plainti has now led the instant application dated November 14, 2022 seeking orders to set aside the aforementioned order of September 28, 2022. The application is based on grounds on its face and on the plainti’s supporting adavit sworn on November 14, 2022. He is blaming his previous advocates for failing to comply with court orders on the ling of a further adavit with submissions by August 4, 2022. 3. The respondents have opposed the application vide the replying adavit sworn on March 17, 2023 by the 2nd respondent. He avers that the plainti has failed to state any sucient reasons upon which the court should set aside its orders and instead makes feeble attempts to lay blame on his advocate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17570/eng@2023-05-11 1
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4. I have duly considered the application, the response and the submissions of the parties. The court has discretion to set aside an order for dismissal. In Thathini Development Company Limited v Mombasa Water & Sewerage Company & another [2022] eKLR, the court stated thus; “ The discretion of court to set aside an order for dismissal ought to be exercised judiciously. A suit dismissed for a want of prosecution, means that the parties therein failed to aid court in meeting its overriding objective. The party seeking to reverse this order must explain suciently to court as to why his application is merited and persuade court to exercise its discretion”. 5. The plainti’s adavit in support of the instant application explains the circumstances under which his application was dismissed. He ascribes his predicament to his counsel who failed to comply with this court orders made on June 23, 2022 which had directed the plainti to le and serve his responses and submissions on or before August 4, 2022. 6. The court is mindful of the requirement of substantial justice under article 159 of the Constitution and would not want to visit the mistake of counsel on the plainti. The application is allowed, but the applicant is condemned to pay throw away costs to the respondents to the tune of Kshs 20 000 within 30 days otherwise the orders given here in shall lapse and the le shall stand as closed. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF MAY, 2023 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of:E. Gaturu for the Plainti/ Applicant Lukoye for Defendant/Respondent Court assistant: Eddel https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17570/eng@2023-05-11 2
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