THOMAS K. EGO BORE VS State Law AND Elgeyo Marakwet County

THOMAS K. EGO BORE ……….... PLAINTIFF/RESPONDENT
-VERSUS-
COUNTY GOVERNMENT OF
ELGEYO MARAKWET …….….. 1ST DEFENDANT/APPLICANT
COUNTY LAND REGISTRAR,
ELGEYO MARAKWET ………………..…….…. 2ND DEFENDANT
COUNTY SURVEYOR,
ELGEYO MARAKWET ……….………………… 3RD DEFENDANT
THE ATTORNEY GENERAL …………..…..… 4TH DEFENDANT

RULING
1. Vide a notice of motion application dated 26th January 2024, the 1st defendant/applicant, inter alia sought an order to review, set aside, discharge and/ or vary the orders issued on 22nd January,2024 closing the defence case and directing that parties to file submissions.  In the alternative, the applicant prayed that the witness statements of Barnabas W. K. Kipsat, Philip Kipchumba, and Solomon Kandie dated 26th July, 2017 and filed on 17th August, 2017 be adopted in support of the 1st and 3rd defendants case.

2. As can be discerned from the grounds on the face of the application and the affidavit of Diana Chebet sworn on the 26th of January 2024 in support thereof, the application is premised on the grounds that when the matter came up for defence hearing on 23rd of January 2024, Counsels for the respective parties were informed by the court that the matter had come up the previous day; that upon perusal of the court file, they discovered the defendants’ cases had been closed.  It is the applicant’s contention that the mix up of dates was inadvertent on the part of all counsels who heard the court give the date for defence hearing as 23rd of January, 2024 and not 22nd of January, 2024.  The applicant urges the court to set aside the orders issued on 22nd January 2024 in the interest of justice so as to not condemn the defendants unheard and the people of Elgeyo Marakwet as a whole.

3. The application is not opposed. 

The above notwithstanding, courts have a duty to consider applications on their merits.  See the case of Sweetland Holdings Limited v. Vector Projects Limited & 2 others ELC 310 of 2021 (2021) eKLR, where the court relying on the Supreme Court of Kenya decision in Tullow Oil PLC & 3 Others vs. Permanent Secretary Ministry of Energy and 15Others (2020) eKLR, stated:
“In other circumstances, depending on the nature, where an application is unopposed, and the court sees merit in it, then it should be granted without much ado”. Thus the court has a duty to consider if an application has merits even if it is unopposed. (Emphasis own)

4. I have carefully considered the application by the applicants/1st defendant and the affidavit filed in support, and l find the sole issue for the court's determination to be whether the applicant has made up a case for being granted the orders sought or any of them.

5. The applicant has explained the circumstances leading to non-attendance of court by all counsels on 22nd January, 2024.  She has stated that all counsels in the matter heard the court say that defence hearing would be on 23rd January 2024 and that is why no advocate was present during morning call over on 22nd January, 2024. A perusal of the court record confirms that no advocate was present in court on the material date.  Under the circumstances, I find the explanation given by the applicant to be satisfactory and being of the view that none of the parties opposed the application, I allow prayer (c) in the application with no orders as to costs and set down the matter for defence hearing on 28th May, 2024.

6. Orders accordingly.

Ruling delivered, dated and signed at Iten this 6th day of May, 2024.



Ruling delivered electronically in the presence of:
Mr. Kipnyekwei for the plaintiff
Ms Chebet for the 1st defendant
Ms Rop holding brief for Mr Odongo for 2nd – 4th defendants
Court Assistant – Jael Kerubo