[2013] KEHC 2509 (KLR)

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REPUBLIC OE KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL APPEALNO. 70 OF 2008

CLEMENT WEKESA MUUYI ..…............................………. APPELLANT

VERSUS

OKUMU MASAI.................……......…....................1STRESPONDENT

WILSON SIMIYU MASAI …................................... 2ND RESPONDENT

IDI WASIKE MASAI ….......................................... 3RD RESPONDENT

JUDGMENT

The appellant CLEMENT WEKESA MUUYIfiled a memo of appeal and in it listedsix grounds to contest the ruling of Senior Resident Magistrate in Bungoma CMCCland case No.20 of 2005 delivered on 9th October 2008. Along withit, he filed a record of appeal which contained all proceedings of this case.

I havehad an opportunity to read through therecord and this is what I deduce as the background of this case.The firstRespondent;

Okumu Masaihad boughtland from Wilson Simiyu Masai the2nd Respondent.The 3rd Respondentwasthe administrator of the estate ofWakhungu – deceased, the2nd Respondents father.The 1st Respondent did not gethis title deed for theportion measuring 2. 8 acres and he therefore sued the2nd & 3rdRespondents in BungomaSenior Resident Magistrate court civil caseno. 517 of 1989. The learned trial magistrate delivered the judgment on 2nd August 1990 whenshe dismissed the case because the agreemententeredinto was null and void as the 1st defendant (now 2nd Respondent in this appeal) had no capacity to sell land ownedby the 2ndRespondent (now 3rd Respondent).

Not being happy with this finding, the 1st Respondent commenced proceedings at the Kanduyi Land Disputes Tribunal. The panel of elders heardhis case andgranted him the following orders in the award dated 30th December 2005;

1. The panel ofelders unanimouslyorder that the claimant has theright of ownership to the disputed land.

2. The panel of elders furtherordersthat theadministrator (Idi Wasike Masai)to surrender the parcel of landmeasuring 6. 5 acresbelonging to the objector (Wilson Simiyu Masai)as the rightfulsuccessor of his father's(Wakhungu) estate.

Thereafter the objector (Mr. Wilson Simiyu Masai) to process land ownership measuring 2. 8 acres to the claimant Mr. Okumu Masai immediately.

4. Both the administrator Mr. Idi Wasike and the Objector Mr. Wilson SimiyuWasike toshareequally the costs of the dispute.

5. The court to send the non-biasedland surveyors through theland Registrar to determine the measurements and the boundaries of the disputed land.

6. The documentsattached hereinby the objector and theclaimant verify the above award.

7. Also attachedfind the sketch map.

The aggrieved party has thirty (30) daysright of appeal.

It is importantat this stage to point outthat the decision of the panel of eldersdid not make anyreferenceto any specific parcelof land.This decisionwas filed in court of30th December 2005 and allocatedNo. LDT 20 of 2005. The award wassubsequently adopted as an order of the court on 15th February 2006 (as per copy of orderexhibited at page 84 of the record).In theorder atparagraph (A) reads;

“theapplicantherein be and is hereby entitled toownership of L.R. No. E. Bukusu/W. Sang'alo/433”.

The question then arises, how does thisnumber crop up during the reading of the award when it wasnot part ofthe decisioncontained in the award of the tribunal?. I willrefer to it later in this judgment.All this while, the appellant is notparty to the proceedings.

With the order inhand, the 1st Respondent sets on a routeto get title to his land. He filed an application dated 21st March 2006 seeking authorization of theExecutive Officer of thecourt to sign transfer forms for the 2. 8 acres. He obtained“vesting order” on27th July 2007 (page 76 of the record) which authorizedtheExecutive Officer to sign relevant forms to effecttransfer of 2. 8 acres tohim and 3. 7 acres toWilson Simiyu Masai out ofL.R. No. E. Bukusu/W. Sang'alo/433.

There is another application dated 8th August 2005 which forms part ofthe basisofthis appeal. In this application, brought by way of chamber summons and filed in the same file as the one which adoptedthe award( land case no. 20 of 2005).The1stRespondent sought orders that

“ Land parcel nos. E. Bukusu/W. Sangalo/1708, 1709 and 1710 be nullified andreverted to original parcel No. E. Bukusu/W. Sang'alo/433to enable the applicantand 1st Respondent obtain their shares as per the tribunal award.”

This orderwas granted by the court on 7th September 2006, effectively canceling the threetitles quoted in that prayer.There is nothing in the affidavit in support of the application which givesthe position as to whowere the owners of1708, 1709 & 1710 at the time of ordering of their cancellation.

With this background, now Iwillanalyze the issues raised in the appeal. The orders of7th September 2006 triggered the appellant to participate in the proceedings of the lower court. He receiveda letter asking him to move out of the land from Nanzushi& Co. advocates. He thereforefiled an application through Annet Mumalasi & co. advocates on 20thMay 2008 seeking;

(a).To beenjoined tothese proceedings suo motto.

(b).Injunctive reliefs against the 1stRespondent.

(c).Injunctive reliefs against the1stRespondent.

(d).Orders of7. 9.2006 bereviewed and or set aside.

This applicationwas opposed by the 1st Respondent.The ordersof being enjoined andstay ofExecution was grantedexparte on 26th May 2008. Thisapplication was subsequently withdrawn on30th June 2008 and anotherone filed on the same date.Againinterim orders are obtained on30th June 2008 although theintroductory part of theorder referstoapplication dated 20th May 2008 which had been withdrawn. The application washeard interpates on31. 7.2008 and the same was dismissed on 9th October 2008 by theruling of the learnedMagistrate delivered. The appellant wasunhappy with this ruling hence he appealed. Both counsels have filed written submissions which they highlighted before me on 21stMay 2013. I have perused the submissions.

The appellantarguedthat he was condemned unheard whenthe orders of7th September 2006 were issued. From the documents annexed to the supporting affidavit in the application of30. 6.2008, the appellant wasregistered ownerof L.R. No. E. Bukusu/W. Sangalo/1710 from 1990 to the time of its cancellation.The trial magistrate found that the appellant was nota party in the proceedings whichgave rise to the orders he is seekingto review thereforehe lacked locus tobringthe application.He said the applicant ought to haveapproached the court in a different way.

This was in my view a misdirection on the part of thelearned magistrate. Although the appellant sought to be joined after the proceedings had taken place, this was not a bar for him not participatehowever late itwasas the order affected his title to land.In any event at paragraph 7 of the application, theappellantasked for the orders to be reviewed and or set aside.The learned magistrateought to have analyzed the proceedings beforehim both for review or setting aside.He only made a decision onone thus closingout the applicant.

Inground3 of the appeal, I believe the appellantdid not understand thereasoning of the learned magistrate asregardslocus.The trial courtfelt the applicant lacked locus because at the time the order who was made, the appellant was not a party to the proceedings. I have answered this further in the preceding paragraph.

In ground4 of the appeal, the appellant faulted the trial magistrate for not setting aside the orders of7th September 2006 as thegranting of the same was a nullity since the court lacked jurisdiction to grant it.In his submissions filed in court, the appellant through his counsel didnot addressthisimportantfact raised bythemselves.The 1st respondent submittedthat the orders soughtwhich is made upin the order of 7. 9.06, “were specifically infurtherance on the execution of thedecree which arose from the land disputes tribunal and the court was justified ingranting the said orders.”

Thisground is core becauseitthen puts thequestion did the court have powersto entertain the application dated 8. 8.06granting the orders of 7th September 2006? It is now settledprinciple oflaw that once amagistrate'scourt hasadoptedthe order of a tribunal, it isfunctusofficio.It lacks jurisdiction to entertain anyfurther proceedings in matter.The ordersof 7th September 2006 were in my view totally independent of the award of the tribunal. The award did not mention any parcel no.The parcel no L.R. NO. E. Bukusu/W. Sangalo/433 is only mentioned during cross examination of the 1stRespondent by the panel of elders. Therewas no order ofcancellation of any title contained in the award.These are weighty issues that ought to have been determined by a fresh suit and notby way of application. The court thus entertained fresh issues when it did not have such powers. On powers of court afteradoption of anaward, I referto the case ofMutemi Muasya vs. Mutua Kasuva, Machakos HCCA No. 140 of 2001 where Justice Nambuye whilequoting Sec. 7 ofland Disputes TribunalAct held that the lower court is limited to;(a) receive the award from from chairman (b). enter judgment in accordance thereto (c). cause decree to be drawn.In view of the issues raised by the appellant in his application of 30. 6.2008, the learned trialmagistrate ought to haveon its own motion set aside the orders of7thSeptember 2006.

The last aspect I would like toconsider is whetherthe application for review was proper having been brought by an interested party.Mrs. Mumalasi has submitted thather client met the conditions for review.

She submittedthe trial court misdirected itself when it dismissed the application.That the wording of order 44 (1) referred to “any person”consideringhimself aggrieved. Her client was such 'any person'. She also submitted that the court did not consider whether therewas any other sufficient reason ormistake or error apparent on theface of the record to warrant the review.

Undertheheading sufficient reason, the court has a wide discretion not limitedto the two headings. JusticeHayanga (as he then was) in Nbi Civ. Case no. 250 of1993 – Standardchartered Bank(K) Ltd. vs. Taif Holdings, e KLRquotedMulla in his Code ofCivil procedure 14theedition vol. III on “any sufficient reason” as follows;

“These words must mean that the reason must be one sufficient to the court to which the application forreview is made andthey cannot be held to be limited to the discovery of mistake or error apparent on the record.”

And Mulla quoting anIndian case of NARAIN DAS CHIRANJI LAC [1925] 47 A 11 said;

“For any other sufficient reasonare not onlyvery wide intheir solus, but wereintentionally so made by the legislaturebecause of the possibility ofexceptional cases arising in which obvious injustices would beworked bystrict adherenceto the terms of the decree as originally passed ….... and should be construed liberally.”

In this instance, although theappellantwas not a party to the proceedings when the decree was passed, having approached the court byway ofreview andexplained the obvious injustice occasioned to him, his applicationought to have been granted. The court had powers to exercise its discretion based on the facts presented before it.

For the reasons explained above, I find thisappeal has merit. I thereforesubstitutethe order of the lower court dismissing the application dated 30. 6.2008 with an order that the said application be allowed in part in terms of prayer 6,7, & 9. The appellantto commence fresh suit for prayer no. 8 oncancellation of tittles.The appellant is also awarded costs of theappeal.

JUDGMENTDATED, SIGNED, READand DELIVERED in open court this 25thday of JUNE2013.

A. OMOLLO

JUDGE