Ogutu v Mwangi & 2 others (Environment & Land Case 7 of 2018) [2023] KEELC 22039 (KLR) (6 December 2023) (Ruling) Neutral citation: [2023] KEELC 22039 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KAJIADO ENVIRONMENT & LAND CASE 7 OF 2018 MN GICHERU, J DECEMBER 6, 2023 BETWEEN AGGREY OGUTU ...................................................................................... PLAINTIFF AND DANIEL KAMAU MWANGI .......................................................... 1ST DEFENDANT ROSE WAITHERA MWANGI ........................................................ 2ND DEFENDANT COUNTY GOVERNMENT OF KAJIADO ................................... 3RD DEFENDANT RULING 1. This ruling is on the notice of motion dated 27/2/2023. The motion which is by the Plainti is brought under orders 12 rule 7, 51 rule 1 Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law. It seeks the setting aside of the order made on 9/2/2023 dismissing the plainti’s suit for his non attendance as well as the non attendance of his counsel. 2. The motion is based on four grounds and is supported by an adavit sworn by Gorrety A. Otieno, the plainti’s counsel, dated 27/2/2023 which has three (3) annexures. In summary, the applicant is saying that his advocate failed to attend court on 9/2/2023 rstly because she was unwell in hospital and secondly because she was not aware of the hearing date which had been taken in her absence on 19/12/2022. He craves to be heard. 3. The motion is opposed by the defendants and the third defendant has sworn a replying adavit dated 1/3/2023 in which she deposes that the plainti has not been keen in prosecuting this case and he has no explanation to give for his counsel’s absence on 19/12/2022 since the date had been taken by consent on 26/6/2022 in her presence. 4. I have carefully considered the motion in its entirety including the grounds, the adavits, the annexures and the entire record. Even though the plainti is not convincing on his counsel’s failure to https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22039/eng@2023-12-06 1
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appear in court on 19/12/2022 since the date had been taken by consent in her presence and has also not come clean on the issue of service of the hearing notice via email, I nd that it is fair and just to allow the motion for two reasons. Firstly, it is not fair to condemn a party unheard for failures that are excusable. The right to be heard is paramount and it is one of the ingredients of a fair hearing as enshrined in Article 50(1) of the Constitution. Secondly, the defendants will not suer great prejudice and the costs incurred can be recovered from the plainti. For the above stated reasons, I allow the motion dated 27/2/2023 on two conditions. The rst one is that the plainti pays thrown away costs which will be taxed if not agreed. Secondly, the case be concluded in the next one (1) year. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 6TH DAY OF DECEMBER 2023. M.N. GICHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22039/eng@2023-12-06 2
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