Ongatya (Suing on behalf of Henry Angatia Bwire) v Otabat & another (Environment & Land Case 132 of 2015) [2022] KEELC 15721 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEELC 15721 (KLR)

Republic of Kenya

In the Environment and Land Court at Busia

Environment & Land Case 132 of 2015

BN Olao, J

November 8, 2022

Between

Melisa Andayi Ongatya (Suing on behalf of Henry Angatia Bwire)

Petitioner

and

Augustine Omele Otabat

1^st Respondent

Obarasa Otabat Musa

2^nd Respondent

Ruling

1.This suit was filed in 2015. And other than prosecuting the application seeking to injunct the defendants from interfering with the land parcel No Teso/Chakol/321, which application was dismissed with costs by Kaniaru J on March 10, 2020, the plaintiff has not prosecuted her claim.

2.On June 28, 2022 it was listed for dismissal before Omollo J. The plaintiff’s counsel Mr Ashioya however sought the court’s indulgence and addressed the Judge as follows:“I am praying for a last chance to trace my client and confirm if he is still interested in the case” Omollo J indulged counsel and make the following order:“NTSC cancelled. Matter fixed for hearing on November 8, 2022”When the matter came up for hearing today, Mr Bogonko counsel for the defendants was ready. I allocated the hearing for 10.45 am and even then neither the plaintiff nor her counsel was present. The court clerk had to summon Mr Ashioya from the Chief Magistrate’s Court. He sought time to put in an application to cease acting.

3.Mr Bogonko however sought the dismissal of the suit with costs arguing that the plaintiff is not serious in prosecuting this case which is now 7 years having been filed in 2015.

4.Mr Ashioya is on record seeking the “last chance” to consult his client and find out if she “is still interested in this case.” That was on June 28, 2022. Five (5) months later, it is clear to me that the plaintiff is not interest in prosecuting this case. It was listed for hearing today with the consent of both parties. The plaintiff is absent and there is no explanation for her absence. It is not clear why counsel, having taken a hearing date waited until today to inform the court about his intention to cease acting for the plaintiff. Surely that application ought to have been filed earlier. Order 12 rule 3 (1) of the Civil Procedure Rules provides that:“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.”From the record herein, there is no “good cause” why this suit should not be dismissed.

5.This suit is accordingly dismissed with costs to the defendant.

RULING DATED, SIGNED AND DELIVERED AT BUSIA ELC ON THIS 8^TH DAY OF NOVEMBER 2022 IN OPEN COURT.B.N. OLAOJUDGE8^TH NOVEMBER 2022Mr. Bogonko presentMr. Ashioya presentAnyasi – Court Assistant

Ongatya (Suing on behalf of Henry Angatia Bwire) v Otabat & another (Environment & Land Case 132 of 2015) [2022] KEELC 15721 (KLR) (8 November 2022) (Ruling)

Ongatya (Suing on behalf of Henry Angatia Bwire) v Otabat & another (Environment & Land Case 132 of 2015) [2022] KEELC 15721 (KLR) (8 November 2022) (Ruling)

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