[2023] KEELC 21417 (KLR)

Butt v Wachira & 8 others; Mamo & 8 others (Interested Parties) (Environment & Land Case 4 of 2023) [2023] KEELC 21417 (KLR) (30 October 2023) (Ruling)

Neutral citation: [2023] KEELC 21417 (KLR)

Republic of Kenya

In the Environment and Land Court at Nanyuki

Environment & Land Case 4 of 2023

AK Bor, J

October 30, 2023

Between

Abid Mahmood Butt

Plaintiff

and

Francis Macharia Wachira

1st Defendant

Wamuyu King’ori Kahuho

2nd Defendant

Rose Njoki Muchemi

3rd Defendant

Nicholas Maina Wachira

4th Defendant

Charles Lambo M’mwonyo

5th Defendant

Samuel Mwingirwa Munyi

6th Defendant

Francis Muriungi Mwenda

7th Defendant

Joseph M’Limbere M’Etarika

8th Defendant

Fatuma Bashir Dabaso

9th Defendant

and

Dabasa Halkahi Mamo

Interested Party

Wilson Kanyi Nderi

Interested Party

Samuel Tianda

Interested Party

Lucy Nyaruai Nderitu

Interested Party

Samuel Macharia Warui

Interested Party

Samson Gichuki

Interested Party

Bashiri Dabaso Halkan

Interested Party

Abdi Dabaso Halkan

Interested Party

David Mwaniki Kanyi

Interested Party

Ruling

1. Through the application dated 19/1/2023, the plaintiff sought review of the decree passed on 14/10/2021 so as to have a declaration issued that the judgment and decree in the suit applies to the interested parties in the same manner and in all respects as it applied to the defendants. Further, it sought to have theinterested parties deemed to have been defendants in the suit in addition to the defendants named in the suit. Lastly, it sought to have the interested parties and members of their families as well as any other person claiming under any of the interested parties ordered to vacate land reference number (L.R No.) 10422/19 Nanyuki within 30 days of the date of the ruling on this application failing which they should be evicted at their cost.

2. The application was made on the grounds firstly, that from the ruling delivered in Nanyuki ELC Case No. 001 of 2022 in the suit filed by the plaintiff against the interested parties seeking their eviction, it has transpired that the judgment and decree delivered by the court on 14/10/2021 was enforceable against the interested partiesas additional trespassers in the suit land notwithstanding that they were not parties to the suit. Secondly, that it was not possible to apply for execution against the interested parties without preceding that with this application and that the observation made by this court in Nanyuki ELC Case No. 001 of 2022 constituted sufficient reason to review the decree made on 14/10/2021.

3. The application, which was brought under Order 45 Rule 1(a) of the Civil Procedure Rules, was supported by the affidavit sworn by the plaintiff. He deponed that vide the judgment delivered on 14/10/2021, the defendants were ordered to vacate L.R No. 10422/19 within 30 days of the date of the judgment in default of which they would be evicted from the land. He confirmed that the judgment had been executed and that he subsequently filed Nanyuki ELC Case No. 001 of 2022 against a different set of parties who are the interested parties here seeking similar reliefs as those in the previous suit. He sought orders of injunction to restrain the interested parties from committing acts of waste and destruction upon the suit land. In the ruling delivered on 25/10/2022, this court dismissed the application and the suit on the premise that the judgment and decree delivered on 14/10/2021 applied to the defendants in the case. He concluded that it was not possible to apply for execution against the interested parties without seeking a review of the judgment and decree. He annexed copies of the plaint, defence and the ruling delivered in Nanyuki ELC Case No. 001 of 2022.

4. Lucy Nyaruai Nderitu swore the replying affidavit opposing the plaintiff’s application. She averred that the plaintiff had not met the legal requirements for the review of the judgment. Further, that it was inexplicable how the plaintiff seeks to introduce new parties to this suit through an application for review post judgment yet they were not parties and had never been heard in the case. She added that the defendants had already been evicted from the suit land and the plaintiff lodged Civil Appeal No. E001 of 2023 in the Court of Appeal against the ruling of this court. She averred that the instant application to review the ruling of this court was an abuse of the court process and that plaintiff should not seek to benefit from the same ruling that he had appealed against. She urged that it was only fair for this court to await the determination of Nyeri Civil Appeal No. E001 of 2023. Further, she contended that this court should not review the judgment of another court of concurrent jurisdiction.

5. The court directed parties to file submissions on the application. The plaintiff submitted that this court struck out the suit on the ground that a determination on the ownership of the suit property had been made in ELC Case No. 230 of 2016 which had not been set aside or reviewed. Further, that what was left was the enforcement of that judgment in that suit and not the filing of another suit. The plaintiff submitted that he based his application upon the guidance provided by the ruling of 25/10/2022 in which this court categorically said and rightly so, that the judgment in Nyeri ELC Case No. 230 of 2016 was a judgment in rem which was binding on all and sundry. The plaintiff submitted that since he could not directly apply for execution against the interested parties who were not parties to Nyeri ELC Case No. 230 of 2016, he had to bring this application for review to join the interested parties in the suit and seek execution in terms of the judgment in the suit.

6. The plaintiff submitted that a judgment in rem does not envisage any contestation as to the liability of the transgressors this being a matter already decided by such a judgment. Further, that a judgment in rem deems persons bound by that judgment to be parties to the suit and all an applicant had to show was that the interested parties had an interest in the decided suit. He emphasised that he had demonstrated that the interested parties had such interest and that they did file another suit being Nanyuki ELC Case No. 1 of 2022 (OS) which was dismissed on a similar ground that the determination in Nyeri ELC Case No. 230 of 2016 was a judgment in rem. The plaintiff submitted that the ruling delivered on 25/10/2022 was not a bar to the application for review and that if it were granted he would not need to pursue the appeal.

7. The interested parties filed a notice of preliminary objection on 27/3/2023 claiming firstly, that they were not parties to the suit and had not been joined by an order of the court; and secondly, that the suit was concluded on 14/10/2021 against a different set of defendants and not the interested parties.

8. The interested parties filed submissions on 12/6/2023 in which they cited article 50 (1) of the Constitution which guarantees every person the right to have any dispute that can be resolved by the application of law decided in a fair hearing before a court or tribunal. They submitted that they have an inherent right to be heard before a decision as drastic as eviction, which would render them homeless and destitute, can be imposed on them. They maintained that they had not been afforded the constitutional safeguard unlike the defendants who were heard before the court passed judgment against them.

9. The interested parties contended that this court was functus officio and had no jurisdiction to exercise the powers the plaintiff was inviting it to. They relied on Election Petitions Nos. 3, 4 & 5 Raila Odinga &others v IEBC &others[2013] eKLR on the dotrine of functus officio as the mechanism by which decision making powers could only be exercised once in relation to the same matter and cannot be varied by the decision maker. They urged that these proceedings were concluded and that the court becomes functus when its judgment or order has been perfected with the purpose of the doctrine being to provide finality. Further, that once proceedings are concluded the court cannot review or alter its decision and that any challenge has to be taken up in a higher court.

10. The interested parties submitted that review was governed by section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. They cited the decision in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR where the court stated that when considering an application for review a court must confine its adjudication to the material which was available at the time it made the intial decision and that the happening of subsequent developments could not be taken into consideration in declaring the intial decision as vitiated by error. Further, that mere discovery of new or important matter or evidence was not a sufficient ground for review and that the party must show that such matter or evidence was not within its knowledge and even after the exercise of due diligence it could not be produced before the court earlier.

11. The plaintiff filed further submissions and pointed out that it should not be lost that the interested parties had filed the suit against him alongside two other defendants and this court dismissed the suit. He contended that further litigation touching on the ownership of the suit land following this court’s decision in Nanyuki ELC Case No. 001 of 2022 (OS) and Nanyuki ELC Case No. 001 of 2022 would be frivolous and vexatious. The plaintiff submitted that in imposing its decision on a party who was not a party to the judgment, a judgment in rem presupposes that the question raised by the subsequent party was the same or a similar question in the judgment and treats the subsequent party as if it had been heard in the former suit.

12. Further, the plaintiff submitted that the court was not functus officio because the interested parties were not parties to this suit and that no decision had been made against them or in their favour. The plaintiff went further to urge that he had no way of seeking satisfaction from the ruling in Nanyuki ELC Case No. 1 of 2022 other than by this application and that he was inviting the court to apply its decision in this case to the new parties who are the interested parties. He added that his application was premised on discovery of new and important matter as well as sufficient reasons pursuant to Order 45 Rule 1 of the Civil Procedure Rule. Further, that the ruling upon which this application was predicated was delivered on 25/10/2022 and that development was not forseeable to him. He concluded that the application was filed within the scope of sufficient cause, that cause being the revelation that the judgment in this case is enforceable against the interested parties.

13. The issue of determination is whether the court should grant the orders sought in the application dated 19/1/2023 and review the decree passed on 14/10/2021 in the manner sought by the plaintiff. There is no dispute over the fact that the court delivered a judgment on 14/10/2021 against the defendants and that that the decree arising from that judgment was executed and the defendants vacated the suit land. The bone of contention is whether that judgment should be reviwed to have that decree executed against the interested parties based on the ruling of the court in Nanyuki ELC Case No. 001 of 2022 vide which the court found that a determination on the ownership of the suit land had already been made in this suit and that a judgment in rem delivered by the court.

14. Order 1 of the Civil Procedure Rules deals with parties to suits. Rule 3 states that all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction where common questions of law or fact would arise. Rule 10 allows the substitution and addition of necessary parties to a suit at any stage of the proceedings in order to enable the court effectually and completely adjudicate and settle all questions involved in the suit. Order 8 allows for the amendment of pleadings with or without leave of the court for the purpose of determining the real question in controversy.

15. The upshot of these provisions is that with the exercise of due diligence to establish the persons who had trespassed on his land, the plaintiff could have applied to add the interested parties to the suit and the court had the discretion to allow him to amend his suit to plead his whole claim against all persons who were on his land before the case was finalised and judgement was delivered. Once judgment was delivered and the plaintiff executed the decree against the defendants, he cannot extend the execution of that judgment to other parties as he seeks to do in this application. Litigation must come to an end and need not be prolonged endlessly, for that is the principle behind the doctrine of functus officio.

16. The plaintiff does not claim to have discovered new or important matter or evidence in relation to his claim of trespass of its land by the interested parties nor did he show that the occupation of his land by the interested parties was not within his knowledge at the time he filed this suit or when he obtained the judgment which he executed against the defendants. The court is not satisfied that with the exercise of due diligence the plaintiff could not have added the interested parties to the suit earlier.

17. The court declines to grant the orders sought in the application dated 19/1/2023. Each party will bear its costs.

DELIVERED VIRTUALLY AT NANYUKI THIS 30TH DAY OF OCTOBER 2023. K. BORJUDGEIn the presence of: -Mr. Mwangi Kariuki for the plaintiffMr. John Muu for the interested partiesNo appearance for the defendants