Chacha v Attorney General & 2 others (Environment & Land Case 538 of 2017) [2024] KEELC 14222 (KLR) (18 November 2024) (Ruling) Neutral citation: [2024] KEELC 14222 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MIGORI ENVIRONMENT & LAND CASE 538 OF 2017 GMA ONGONDO, J NOVEMBER 18, 2024 BETWEEN ESTHER ROBI CHACHA ......................................................................... PLAINTIFF AND ATTORNEY GENERAL .................................................................. 1ST DEFENDANT REGISTERED TRUSTEE CATHOLIC DIOCESE OF KISII ....... 2ND DEFENDANT PAUL GINONO ................................................................................ 3RD DEFENDANT RULING 1. 2. By a Notice of Motion dated 15th November 2023 under sections 1A, 1B, 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya and Order 12 Rule 7 of the Civil Procedure Rules 2010, the applicant, Esther Robi Chacha through Abisai and Company Advocates is seeking the orders thus; a. That, the orders made on the 26th October 2023 be set aside. b. That, the plainti/Applicant be allowed leave to change advocate herein from rm of Ms. Kerario Marwa & Company Advocates to Ms. Abisai & Company Advocates. c. That, the suit be reinstated and set down for hearing. d. That, costs of this Application be provided for. The application is premised upon the annexed adavit of eighteen paragraphs sworn on even date by the applicant and twelve grounds which include; a. This suit came up for hearing on 26th October 2023 and was dismissed for want of prosecution. b. That the hearing notice for 26th October 2023 was not served upon the Plainti’s advocate. c. The Applicant wishes to proceed with her case on merit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14222/eng@2024-11-18 1
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3. The respondents were duly made aware of the existence of the application as disclosed in the adavit of service sworn 13th November 2023 by Aggrey Ongiri, an authorized process server. Nonetheless, they opted not to respond to the application; see also Ogada-vs-Mollin (2009) eKLR. 4. On 5th December 2023, the court directed that the application be heard by written submissions. 5. The plainti/applicant’s counsel led submissions dated 2nd January 2024 making reference to the application, the hearing of the suit which was xed for 20th October 2023 and that the applicant’s counsel was not aware of the date. So, counsel submitted that the applicant deserves the orders sought in the application. To reinforce the submissions, counsel relied on Philip Chemwolo and anothervs-Augustine Kubende (1986-88) eKLR 103 and Wachira Karani-vs-Bildad Wachira (2016) eKLR, among other authorities. 6. The respondents did not le submissions in respect of the application. 7. On that account, is the applicant deserving of the orders sought in the application? 8. The suit was dismissed on 26th October 2023 when the court observed; ‘ I note that today’s hearing was taken by consent of the parties and the matter herein having been led in court in 2012 and the plainti absence not explained the suit herein is dismissed for want of prosecution. Costs to the 1st defendant’ 9. It must be noted that on 2nd October 2023 when the hearing of the suit was set for 26th October 2023, there was no appearance for the plainti. Only Mr Kisera learned counsel for the 2nd defendant was present and he court directed that the plainti/applicant be served with hearing notice. 10. Clearly, there is nothing on record to show that the plainti was served or made aware of the existence of the hearing xed for 26th October 2023 as noted in Ogada case (supra). 11. Order 9 Rule 9 of the Civil Procedure Rules 2010 governs change of advocate by an order of court or consent of the parties. Order 12 Rule 7 of the said Rules provides for setting aside judgment or dismissal in a suit. Indeed, the suit was dismissed and the applicant has the right to counsel herein. 12. It is established law that the right to be heard is an unlimited fundamental principle of justice; see Articles 25 (c ) and 50 (1) of the Constitution of Kenya 2010, Philip Chemwolo case (supra) and Halsbury’s Laws of England 5th Edition 2010 Volume 61 paragraph 639. 13. To that end, I nd that the applicant is entitled to the hearing of the suit on merit. The application is rm and meritorious. 14. Wherefore, the application is hereby allowed in terms of prayers a, b and c as stated in paragraph 1 a, b and c hereinabove. 15. Costs of the application be in the cause 16. The suit is set for mention on 26th February 2025. 17. It is so ordered. DATED and DELIVERED at MIGORI this 18TH day of NOVEMBER 2024 G M A ONGONDO JUDGE PRESENT; https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14222/eng@2024-11-18 2
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Mr B. Singei learned counsel for the applicant Ms Opiyo learned counsel for the 1st respondent Mr Achola learned counsel for the 3rd respondent Tom Maurice, court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14222/eng@2024-11-18 3
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