[2022] KEELC 312 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC SUIT NO. 1145 OF 2013

DEVLAN LIMITED.....................................................................................................PLAINTIFF

VERSUS

OBADIAH MUTISYA KITONYI....................................................................1ST DEFENDANT

THE ATTORNEY GENERAL........................................................................2ND DEFENDANT

THE COMMISSIONER OF LANDS..............................................................3RD DEFENDANT

RULING

INTRODUCTION

1. Vide Notice of Motion Application dated the 16th April 2021, the 1st Defendant/Applicant herein has sought for the following Reliefs;

I. ………………………..……………………………………………………(Spent).

II. The Honourable court to order the officer commanding Kilimani Police Station and direct police officer to escort the 1st Defendant/Applicant with his team to remove the barrier erected on L.R No. 209/13541, in Nairobi and allow him to fence his land for purposes of maintaining law and order, peace and to avert any violence from any Party.

III. The Police to restrict themselves to maintaining law and order during the Fencing exercise.

IV. Cost of this Application be borne by the Plaintiff/Respondent.

2. The subject Application is based and/or premised on the grounds enumerated thereunder and same is further supported by the affidavit of the 1st Defendant/Applicant sworn on the 16th April 2021.

3. Upon being served with the subject Application the Plaintiff/Respondent filed Grounds of opposition dated the 29th September 2021, as well as a Replying affidavit sworn on the 29th September 2021, and which affidavit was sworn by Joseph Warari Gathoga.

DEPOSITIONS BY THE PARTIES:

THE 1ST DEFENDANT’S/APPLICANT’S CASE:

4. Vide Supporting affidavit sworn on the 16th April 2021, the 1st Defendant/Applicant has averred as hereunder;

5. Same, namely, the 1ST Defendant, is the registered owner and/or proprietor of L.R No. 209/13541 and in respect of which the Court herein granted a Decree issued on the 4th December 2017.

6. Subsequent to the decree, th Plaintiff/Respondent has erected a barrier on a portion of the Suit land and also employed private guards, to block and/or restrain the same and her tenants and/or servants, from entering upon and/or making use a portion of the suit property.

7. By virtue of the actions and/or activities by the Plaintiff/Respondents, same has continued to disobey lawful orders of the court and in this regard, the 1ST Defendant has continued to suffer loss and or prejudice, including deprivation of a portion of the suit property.

8. Owing to the foregoing, it is therefore appropriate that the barrier and the perimeter wall constructed and/or erected by the Plaintiff/Respondent, be removed and/or demolished.

9. At any rate, unless the court grants an order to facilitate the removal and/or demolition of the barrier and the perimeter wall, the judgment of the court herein will be an exercise in futility.

RESPONSE BY THE PLAINTIFF:

10. Vide Replying affidavit sworn on the 29th September 2021, one Joseph Warari Gathoga, has averred as hereunder;

11. The subject suit was filed by and/or on behalf of the Plaintiff/Respondent and upon the filing thereof, the 1st Defendant/Applicant duly entered appearance and also filed a Defense and counter-claim.

12. It has been averred that vide the counter-claim, the 1st Defendant/Applicant sought Specific orders and/or Reliefs, including General Damages, costs and interests.

13. Further, it was averred that upon the hearing and conclusion of the subject matter, the court proceeded to and granted in favor of the 1st Defendant/Applicant an award of Kshs,100, 000/= only on account of General Damages, as well as cost of the suit.

14. Be that as it may, it has been averred that at no point in time did the 1st Defendant/Applicant amend the Counter-claim to seek for the orders of Eviction and/or demolition of either the barrier complained of or the perimeter wall, which are now the subject of the instant Application.

15. The deponent has further averred that to the extent that the orders of Eviction and demolition were neither sought for nor granted, during the substantive hearing and judgment, same cannot now be sought for and or be procured vide a post judgment Application.

16. Notwithstanding the foregoing, the deponent has further averred that after the delivery of the judgment and the extraction of the decree, the court herein became functus – officioand hence the court cannot now be invited to grant further or additional orders, which will supersede the terms of the judgment.

17. At any rate, the deponent has further averred that the orders which the 1st Defendant/Applicant, is now seeking, courtesy of the Application were sought for during the submissions stage, but the court declined to deal with the said request and/or grant same.

18. Owing to the foregoing, the deponent has thus averred that having been declined during the substantive proceedings, the said orders cannot now be re-agitated yet again and neither can the court proceed to and grant orders, which had previously been declined.

19. In the premises, the deponent has contended that the entire Application filed by and/or on behalf of the 1st Defendant/Applicant is therefore prohibited by the Doctrine of Res-judicataand same similarly amounts to an abuse of the Due process of the Court.

20. Finally, the Plaintiff/.Respondent has also averred that the Application has also been made with undue delay, which delay has not been explained and/or accounted for. In this regard, the Plaintiff has therefore impleaded the Doctrine ofLaches.

21. In the premises, the Plaintiff/Respondent has therefore contended that the subject Application constitutes and/or amounts to an abuse of the Due process of the court and the court is also not seized of the requisite jurisdiction.

22. In a nutshell, the Plaintiff/Respondent has therefore sought for orders dismissing the Application.

SUBMISSIONS BY THE PARTIES:

23. The subject Application came up for directions on the 8th November 2021, when directions were taken and/or given that the subject application be canvased and/or disposed of by way of written submissions. In this regard, the Parties agreed to file and exchange written submissions within 21 days each.

24. Pursuant to the directions, the 1st Defendant/Applicant filed his written submissions on the 11th January 2022, whereas the Plaintiff/respondent, filed her written submissions on the 20th January 2022. For clarity, the two sets of written submissions are on record.

25. In short, the 1st Defendant/Applicant has contended that upon the filing of the statement of Defense and Counter-claim, same was heard and concluded vide judgment rendered on the 4th December 2017, whereby judgment was entered of the 1st Defendant/Applicant.

26. It has further been submitted that pursuant to the judgment, the court proceeded to and awarded to and in favor of the 1st Defendant/Applicant General damages in the sum of Kes.100, 000/= only as well as costs.

27. Be that as it may, the 1st Defendant/Applicant has also submitted that despite the Judgment of the court, the Plaintiff/Respondent herein has proceeded to and erected a barrier and a perimeter wall fence, which have interfered with activities of the 1st Defendant/Applicant and in particular, denied the 1st Defendant/Applicant of access to and usage of the suit property.

28. According to the 1st Defendant/Applicant, the actions by the Plaintiff/Respondent amounts to Contempt of court and that the court should find it fit to direct the Plaintiff/Respondent to remove the barriers and to demolish the offensive perimeter wall.

29. To the contrary, the 1st Defendant/Applicant has also sought for an order that same be allowed to remove the barrier and demolish the Plaintiffs/Respondents wall, which interfered with the suit property and that the police be ordered to provide security and ensure maintenance of law and order.

30. On his part, the Plaintiff/Respondent has submitted that 1st Defendant/Applicant herein filed a counter-claim which sought for various specific orders and which orders were granted before the court at the conclusion of the hearing of the subject matter.

31. For clarity, it has been pointed out that the 1st Defendant herein neither sought for nor obtain any orders for demolition or eviction.

32. It has further been submitted that to the extent that the court did not grant any orders of eviction or demolition during the substantive hearing, no such orders can now be sought for and obtained on the face of an Application made long after a judgment been delivered and/or pronounced.

33. On the other hand, the Plaintiff/Respondent has further submitted that the court herein is Functus – officioand therefore the court cannot entertain the subject Application whose effect is to vary and/or set aside lawful orders of the court, which were given after a full hearing and against which there is no Appeal.

34. Consequently, it is the Plaintiff/Respondent’s contention that the said Application is barred by the Doctrine of Res-judicata,as well as the Doctrine of Functus – officio.In this regard, the Plaintiff/Respondent has therefore sought that the entire Application be dismissed with costs.

ISSUES FOR DETERMINATION:

35. Having reviewed the Application dated the 16th April 2021, the response thereto and having similarly considered the written submissions filed by and/or on behalf of the Parties, the following issues arise and are germane for determination;

I. Whether the Reliefs sought at the foot of the Application are Res-judicata.

II. Whether the court is Functus – officio.

III. Whether the court has the requisite jurisdiction to hear and entertain the Application the 1st Defendant/Applicant.

IV. Whether the subject Application is Incompetent.

ANALYSIS AND DETERMINATION:

ISSUE NUMBER 1

Whether the Reliefs sought at the foot of the Application are Res-Judicata:

36. Pursuant to the orders of the court made on the 20th September 2017, the parties herein were ordered to file and exchange submissions as pertains to their respective cases. For clarity, the submissions were to highlight the pertinent issues that had arisen vide the survey Reports which were filed pursuant to an order of the court.

37. Following the filing of the said submissions, the court granted to and in favor of each party an opportunity to highlight their submissions and same were duly highlighted on the 16th October 2017.

38. Pursuant to and during the highlights, counsel for the 1st Defendant/Applicant addressed the court on the fact that the Plaintiff/Respondent erected a barrier on what was deemed as a road of access and the barrier was therefore restricting the 1st Defendant’s/Applicant’s use and development of a portion of the suit property.

39. Suffice it also to note, that the 1st Defendant’s/Applicant’s counsel also submitted that the Plaintiff/Respondent has also erected a perimeter wall and in this regard, the 1st Defendant/Applicant implored the court to direct the Plaintiff/Respondent to remove the wall which had encroached onto the portion of the suit property within thirty (30) days.

40. It is worthy to note that the said submissions by and/or at the instance of the 1st Defendant’s/Applicant’s advocate were duly captured and same were reproduced at paragraph 25 of the Judgment delivered on the 4th December 2017.

41. Be that as it may, even though the court had been treated to submissions that the Plaintiff/Respondent had erected a wall on the 1st Defendant’s/Applicant’s land, namely, the suit property, the court was not persuaded to grant the order for the removal, demolition and/or bringing down of the offensive wall and the barrier which are now being complained of.

42. From the foregoing, it is evident that the issue of the barrier erected by the Plaintiff/Respondent, as well as the perimeter wall were duly ventilated before the court but the court declined to make any orders to that effect.

43. It is not clear why the court did not address the said issues. However, the failure and/or refusal, may have been informed by the fact that the Pleadings which had been filed by the 1st Defendant/Applicant did not contained any such prayers, which were now being sought courtesy of the submissions.

44. Nevertheless, what comes out clearly is that the said issues were placed before the court and therefore the court is deemed to have dealt with same and silently declined to grant same. In this regard, it is important to note, that an order which is sought for, but is not granted, is deemed to have been dismissed.

45. Owing to the foregoing, it is my finding and holding that to the extent that the issue of the offensive barrier and the perimeter wall, had previously been raised before the court, the said issues are therefore deemed to be Res-judicataand hence same cannot be dealt with before this court for a second time.

46. Consequently, the subject Application, which is seeking to re-agitate, an issue which has previously been dealt with, is therefore barred by the Doctrine of Res-judicata.For clarity, the provisions of Section 7 of the Civil Procedure Act, Chapter 21, Laws of Kenya, are therefore important and worthy of compliance with.

47. It is also important to note that where an issue, would have been raised and/or dealt with during the trial, such an issue is deemed to have been constructively dealt with and/or addressed and hence same cannot be re-visited. See Section 7(4) of the Civil Procedure Act, which provides as hereunder;

RES JUDICATA:

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

Explanation. —(1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.

Explanation. —(2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.

Explanation. —(3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation. —(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation. —(5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.

Explanation. —(6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

48. Based on the foregoing, the issues raised in the subject Application are therefore Res-Judicataand therefore cannot be granted either as sought or at all.

49. In support of the forgoing submissions, it is worthy to take cognizance of the holding in the case of John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR, where the court observed as hereunder;

The Doctrine of res judicata has two main dimensions: cause of action res judicata and issue res judicata. Res judicata based on a cause of action, arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter.Cause of action res judicata extends to a point which might have been made but was not raised and decided in the earlier proceedings. In such a case, the bar is absolute unless fraud or collusion is alleged. Issue res judicata may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant and one of the parties seeks to re-open that issue.

ISSUE NUMBER 2:

Whether the court is Functus – Officio.

50. The Parties herein filed their respective pleadings, namely the Plaint and statement of Defense to Counter-claim, whereby same raised various issues, upon which the Parties sought determination and/ or intervention of the Court.

51. Subsequently, the Parties herein sought and/or obtained the permission of the court to engage surveyors carry out and/or conduct survey exercise, to ascertain and/or demarcate the ground location in respect of the disputed properties and also to ascertain whether there was encroachment onto the suit property.

52. Following the survey exercise, the appointed surveyors, which included the Government surveyor and the two private surveyors engaged by the Plaintiff/Respondent and the 1st Defendant/Applicant filed their respective Reports in court.

53. It is imperative to note that after the survey reports were filed, the Parties herein were granted an opportunity to file and highlight submissions, which was duly done and thereafter the court reserved the matter for Judgment.

54. For coherence, the court proceeded to and rendered a judgment pertaining to and/or concerning the various topical issues that were presented before it. In this regard, the subject dispute was fully adjudicated upon.

55. Nevertheless, 1st Defendant/Applicant herein has now approached the court with an Application whereby same is seeking to be granted orders which are akin to Eviction and demolition, but which orders were neither pleaded nor contained in the primary pleadings.

56. It is worthy to note that once a court has granted a judgment, the court cannot have a second bite on the same issues and to do so, would be tantamount to the court sitting on an appeal on its own judgment or of the judgment of a court of concurrent jurisdiction. For clarity, such kind of an act is uncalled for and is otherwise unlawful.

57. Be that as it may, once a court of law has pronounced itself on the subject before it, the court becomes Functus – officio,save for the limited jurisdiction conferred vide the slip-rule, pursuant to Section 99 of the Civil Procedure Act, which provides a very limited scope for correction of Judgements/rulings, to the extent of correction of arithmetical or Clerical errors only.

58. In support of the foregoing observation, I adopt and reiterate the observation of the court of ppeal in the case of Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR, where the court observed as hereunder;

Functus officiois an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of CHANDLER vs ALBERTA ASSOCIATION OF ARCHITECTS [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);

“The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of AppealIn re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:

1. Where there had been a slip in drawing it up, and,

2. Where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186”

59. The issues that are being raised by the 1st Defendant/Applicant vide the subject application, are new issues, which ought to have been placed before the court during the plenary hearing, but which were not so placed.

60. Consequently, it is my finding and holding that the twin issues for the demolition of the barrier or wall, cannot be adjudicated upon and/or addressed by this court at this juncture and that the court is barred by the doctrine of Functus – officio.

ISSUE NUMBER 3:

Whether the Court has the requisite Jurisdiction to hear and entertain the Application by the 1st Defendant/Applicant.

61. The Parties are bound by their Pleading and in this regard, a Party is called upon to craft his/her pleadings, in such a manner, that contains all the ingredients and the issues that the Party desires the court to pronounce itself on.

62. As concerns the subject matter, the 1st Defendant/Applicant herein proffered to the court a counter-claim which contained three (3) precipitate prayers, namely damages, costs and interests.

63. Having placed before the court, the counter -claim which only raised the foregoing issues, it is therefore not open for the 1st Defendant/Applicant to now seek to expand the boundaries of his Pleadings and to sneak in new claims and/or new prayers, which were neither placed before the court nor pleaded, in the 1st instance.

64. At any rate, even assuming that the 1st Defendant/Applicant could bring such new claims and/or reliefs before a court for adjudication, ( which I am not certain), certainly same cannot be brought before the Court four years after the court has pronounced a judgment in the matter.

65. Nevertheless, I must point out that the Rule of Departure binds Parties to their pleadings and that once a party has placed before the court his/her pleadings, same is duly bound unless an amendment is sought for and obtained.

66. In respect to the foregoing statement, I reiterate and adopt the decision of the Court of Appeal in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR,where the court stated as hereunder;

“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings…for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….

In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”

67. Once the Parties place before the court their respective pleadings, the court thus possess jurisdiction to interrogate and/or adjudicate upon the issues and/or matters placed before it. However, the court will not possess jurisdiction, to deal with an issue and/or matter, which has not been properly and/or legally brought to her attention.

68. In the premises, I find and hold that the issues contained in the body of the Application dated the 16th April 2021, have not been properly been brought before the court and therefore the court is not possessed of jurisdiction to attend to, handle and/or deal with same.

ISSUE NUMBER 4

Whether the subject Application is Pre-mature and Incompetent.

69. The subject Application speaks to and/or concerns implementation, enforcement and/or execution of the decree of the court that was issued on the 4th December 2017. For clarity, the 1st Defendant/Applicant, is keen to have the police execute and/or enforce what is termed to be the orders of the court.

70. Even though I have found and held that the orders sought to be executed were not granted by the court, and same cannot in any event, be granted at this juncture. It is also worthy to note that the enforcement of the orders issued on 4th December 2017, if at all, would have required a Notice to Show Cause to be extracted, Issued and served before an application for enforcement can arise.

71. Suffice it to say, that the Judgment and Decree of the court, upon which the subject enforcement is premised and/ or predicated, were made more than one (1) year ago and therefore same cannot be executed and/or enforcement without compliance with the provisions of Order 22 Rule 18 of the Civil Procedure Rules 2010.

72. For the avoidance of doubt, the Provisions of Order 22 Rule 18 of the Civil Procedure Rule 2010, provides as hereunder;

[Order 22, rule 18. ] Notice to show cause against execution in certain cases.

18. (1) Where an application for execution is made:

(a) more than one year after the date of the decree;

(b) against the legal representative of a party to the decree; or

(c) for attachment of salary or allowance of any person under rule 43, the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:

Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him: Provided further that no such notice shall be necessary on any application for the attachment of salary or allowance whichis caused solely by reason of the judgment-debtor having changed his employment since a previous order for attachment.

(2) Nothing in sub-rule (1) shall be deemed to preclude the court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.

(3) Except as provided in rule 6 and in this rule, no notice is required to be served on a judgment debtor before execution is issued against him.

73. Based on the foregoing, if the 1st Defendant/Applicant was keen (sic) to implement and/or enforce the Decree which was issued on the 4th December 2017, then it behooved same to first and foremost to extract and issue a Notice to show cause, before seeking for Execution courtesy of police intervention and/or otherwise.

74. To the extent that the Decree, upon which the subject Application is premised, was made and/ or handed down, more than one year beforehand, I find and hold that the Application herein, which is effectively based on Execution, is Pre-mature, misconceived and thus legally untenable.

FINAL DISPOSITION:

75. Having reviewed and addressed the itemized issues for determination, it is now appropriate to dispose of the subject Application and to make the Relevant orders;

76. In the premises, it is my finding and holding that the Notice of Motion Application dated the 16th April 2021, is Devoid of Merits and thus courts Dismissal.

77. Consequently, and based on the foregoing reasons, the Application herein be and is hereby Dismissed with cost to the Plaintiff/Respondent.

78. It is so Ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF FEBRUARY 2022.

HON. JUSTICE OGUTTU MBOYA

JUDGE

IN THE PRESENCE OF;

JUNE NAFULA COURT ASSISTANT

MR. KIBANYA FOR THE PLAINTIFF/RESPONDENT

NO APPEARANCE FOR THE 1ST DEFENDANT/APPLICANT

NO APPEARANCE FOR THE 2ND & 3RD DEFENDANTS/RESPONDENTS