[2025] KEELC 30 (KLR)

Equip Agencies Limited & another v Gitau Ngigi Mureithi Njoroge (Sued as office bearers of Gilgil Total Investors Self Help Group) & 4 others (Environment & Land Case 89 of 2024) [2025] KEELC 30 (KLR) (Environment and Land) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 30 (KLR)

Republic of Kenya

In the Environment and Land Court at Naivasha

Environment and Land

Environment & Land Case 89 of 2024

MC Oundo, J

January 16, 2025

Between

Equip Agencies Limited

1st Plaintiff

Gilgil Treatment Industries Limited

2nd Plaintiff

and

Daniel Njuguna Gitau Lucas Kiiru Ngigi Kelvin Mureithi Mary Njoroge (Sued as office bearers of Gilgil Total Investors Self Help Group)

1st Defendant

Joseph Mungai Gikonyo t/a Garam Investments Auctioneers

2nd Defendant

Tower Savings & Credit Co-Operative Society

3rd Defendant

Chief Land Registrar Nakuru County

4th Defendant

I&M Investment Bank Limited

5th Defendant

Ruling

1. Pursuant to a Ruling dated 18th July, 2024 where the Plaintiff’s application dated the 2nd August 2023 had been dismissed and the suit struck out with costs, for being Res judicata, the Plaintiffs herein have filed two Applications which are now before me for determination.

2. The first application is a Notice of Motion dated 30th July 2024 brought by the 2nd Plaintiff pursuant to the provisions of Section 1A, 1B, 3A and 63 (e) of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law wherein it has sought for the following orders.i.Spent.ii.Spent.iii.That pending the lodging, hearing and determination of an intended application in the Court of Appeal under Rule 5(2) (b) of the Court of Appeal Rules, 2010, the court be pleased to grant a temporary order of injunction restraining the 1st Respondent whether by themselves, employees, servants, agents or auctioneers from evicting, advertising for sale, selling or otherwise howsoever completing by conveyance or transfer of any sale conducted by auction private treaty, leasing, letting, charging or otherwise howsoever interfering with the ownership or quiet possession over the property known as L.R No. Gilgil Township Block 2/210. iv.That the court be pleased to grant an order of injunction restraining the 1st Respondent whether by themselves, employees, servants, agents or auctioneers from evicting, advertising for sale, selling or otherwise howsoever completing by conveyance or transfer of any sale conducted by auction private treaty, leasing, letting, charging or otherwise howsoever interfering with the ownership or quiet possession over the property known as L.R No. Gilgil Township Block 2/210 pending the filing, hearing and determination of the intended Appeal.v.That the court be pleased t grant an order of injunction restraining the 1st Defendant whether by its offices, servants, workmen, agents or otherwise howsoever from further evicting the 2nd Plaintiff, its employees or agents from the suit property and/or the denying the 2nd Plaintiff the access and use of portions of which the Plaintiff has running its factory and offices. (sic)vi.That costs be provided for.

3. The said application was supported by the grounds therein as well as the supporting Affidavit of an even date, sworn by James Njuguna Burugu, the 2nd Plaintiff’s General Manager who deponed that being dissatisfied with the Ruling of 18th July, 2024, the 2nd Plaintiff had filed the notice of appeal dated 18th July, 2024.

4. That on the on 27th July, 2024, the 1st Defendant had evicted the 2nd Plaintiff from the suit premises using goons wherein its agents had then proceeded to put up a temporary structure on the suit property. That the said eviction had been contrary to the provisions of Section 152 of the Land Act.

5. That the 2nd Plaintiff’s primary economic focus was the treatment and sale of processed wooden poles which treatment plant had been set up at a cost of over Kshs. 500,000,000/= wherein it had brought in sophisticated equipment that could only be disassembled by a mechanical engineer. That subsequently, it Plaintiff was apprehensive that the people who had invaded the premises may destroy, interfere and or cart away the equipment in the factory.

6. That the appeal was arguable and had high chances of success as evident in the annexed draft Memorandum of Appeal. That the instant Application was not aimed at denying the 1st Respondent its entitlement, if any, but sought to curtail an illegal process and enable the 2nd Plaintiff to protect its assets. That the 2nd Plaintiff stood to suffer irreparably were the orders sought not granted as its right to be heard on appeal would be fatally prejudiced.

7. That indeed, the 2nd Plaintiff had suffered and continued to suffer huge losses as a result of being unable to access the factory wherein it runs the risk of being exposed to legal liabilities as a result of not being able to fulfil its contractual obligations that it had entered into with third parties. That in any case, the 2nd Plaintiff had directly and indirectly employed hundreds of people hence if the actions of the 1st Defendant were not curtailed, the said employees would be rendered redundant. That it was thus in the interest of justice that the orders sought herein be granted.

8. In response and in opposition to the 2nd Plaintiff’s Application, the 1st Defendant filed its Replying Affidavits dated 25th September, 2024 sworn by Daniel Njuguna Gitau, its Chairperson who deponed that the 1st Defendant was the registered leasehold proprietor of the suit property having purchased it through a sale by public auction on 24th January, 2019.

9. That the court lacked jurisdiction to hear the 2nd Plaintiff’s Application since it had already rendered its final judgement hence it had become functus officio. That subsequently, the 2nd Plaintiff could only seek to appeal or review the Ruling that had been delivered on 18th July, 2024. That since the 2nd Plaintiff had elected to appeal against the said Ruling, it had lost the option of review hence the court had remained functus officio without jurisdiction to entertain the instant Application. That further, the suit herein having been struck out on 18th July, 2024, there was no suit in existence in which an application for injunction could be anchored. He thus prayed that the Application dated 30th July, 2024 be dismissed with costs for being unmeritorious.

10. The 2nd to 5th Defendants did not file any response.

11. The second Application is dated 2nd August 2024 and is a Notice of Motion by the 1st Plaintiff brought under the provisions of Section 1A, 1B, 3A, 75(1), 95 of the Civil Procedure Act, Order 42 Rule 6(1), (2) & (4) and Order 50 Rule 1 and 6 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law wherein it sought for the following orders;i.Spent.ii.Spentiii.That the court be pleased to grant temporary order of injunction restraining the Defendants whether by themselves, their employees, servants, agents or auctioneers from evicting, advertising for sale, selling or further alienating whether by public auction or private treaty, subdividing, disposing of or otherwise howsoever completing by conveyance or transfer of an sale concluded by auction or private treaty, leasing, letting, charging, entering into, evicting, invading, destroying in any way, barricading entrance or otherwise howsoever interfering with the Plaintiff’s possession and ownership or title to land reference L.R No. Gilgil Township Block 2/210 pending hearing and determination of Nakuru Court of Appeal Civil Application No. E074 of 2024 filed under Rule 5 (2) (b) of the Court of Appeal Rules, 2022. iv.That the court be pleased to grant any other order that may be sufficient to preserve the substratum of the Appeal being L.R No. Gilgil Township Block 2/210 pending hearing and determination of the Appeal herein.v.That the OCS Gilgil Police Station or any other officer do ensure compliance with orders iii and iv above.

12. The said application was supported by the grounds therein as well as the supporting Affidavit of an even date, sworn by Divyesh Indubhai Patel, the 1st Plaintiff’s Managing Director who deponded that the 1st Plaintiff was at all material times the registered owner of the suit property, that is, L.R No. Gilgil Township Block 2/210, which is developed in three parts and measures approximately 16. 73 hectares, that is, 41. 34 acres. That the suit property houses a treatment industry operated by the 2nd Plaintiff which has a machinery valued at over Kshs. 120,000,000/=.

13. That by a consolidated Ruling dated and delivered on 18th July, 2024, the court had dismissed the Applicant’s Application dated 2nd August 2023 and partially allowed the 1st, 2nd, 3rd and 5th Respondents’ Applications. That the court had further dismissed the Plaintiffs’ suit with costs. That aggrieved by the said decision, the 1st Plaintiff had appealed to the Court of Appeal. That the aforementioned ruling was plainly wrong in principle and in law as had been demonstrated in the draft Memorandum of Appeal. That whereas they had also filed Nakuru Court of Appeal Civil Application No. E074 of 2024 seeking injunction pending appeal wherein the same had been certified urgent, it would take time to constitute a 3-judge bench after the court vacation to hear and determine the Application.

14. That upon the dismissal of their Application, the Defendants had moved with haste and hired goons who had blocked and barricaded the entrance of the suit property and who had started to destroy the same despite the fact that in the impugned Ruling, the court had refused to order eviction without following the due process. That further, the mandatory notice under Section 152 of the Land Act was yet to be issued. That the Defendants had hired goons and were threatening to storm the suit property and forcefully remove the 1st Plaintiff, tenants and employees without any court order, which actions puts their lives at risk.

15. That the Defendants had hastily initiated the process of subdivision of the suit property for further transfer to third parties. That the intended Appeal was arguable with higher probability of success and no damages would be sufficient to remedy the loss and injuries intended to be inflicted upon the 1st Plaintiff. That further, the transfers to third parties would be irreversible should the curt finally find in favour of the 1st Plaintiff in the Appeal.

16. He deponed that the orders sought were intended to maintain law and order, the status quo and preserve the substratum of the suit to prevent further depletion as intended by the Defendants. That the Defendants did not stand to suffer any prejudice and in the event they did, the same could adequately be compensated by damages, thus it was in the interest of justice that the orders sought be granted. That the present Application had been brought without undue delay.

17. In response and opposition to the 1st Plaintiff’s Application, the 1st Defendant filed its Replying Affidavit dated 16th September, 2024 sworn by Daniel Njuguna Gitau, its Chairperson who reiterated the contents of his Replying Affidavit dated 25th September, 2024 in response to the application dated the30th July 2024

18. The 3rd Defendant vide its Replying Affidavit dated 16th September, 2024 sworn by its CEO Patrick Njenga, associated himself fully with the depositions in the 1st Defendant’s Affidavit.

19. The 5th Defendant also opposed the Application vide its Replying Affidavit dated 31st October, 2024 sworn by its Senior Manager in the Legal Department one Andrew Muchina, who deponed that the same was unmerited and an outright abuse of the court process. That further, the intended appeal was not arguable and could not be rendered nugatory since vide a Ruling dated 6th December, 2018 the court had held that in case of any fault during the auction sale conducted by the 5th Defendant, the Applicant would be paid in damages.

20. That further, vide a Ruling delivered on 3rd June, 2022 in Equip Agencies Limited & 5 Others v I&M Bank Limited & Another, HCC No. E943 of 2021 [Unreported], the court had cautioned the Applicant against filing new applications for injunctive orders as the same had already been adjudicated by competent courts of law. That the 1st Plaintiff had never applied to set aside the said Rulings neither had it appealed against them.

21. That it was common ground that there had been no interim orders in place preventing the auction sale of the Charged Property Title No. Gilgil Township Block 2/210 on 24th January, 2019, therefore, the 1st Plaintiff’s equity of redemption had already extinguished hence the orders sought herein would be issued in futility. That the intended appeal to the Court of Appeal could not be rendered nugatory because were it to find that the auction sale that had been conducted on 24th January, 2019 had been unlawful, the 5th Defendant/Respondent was willing to pay the 1st Plaintiff in damages.

22. That further, the court was functus officio hence could not entertain the 1st Plaintiff’s Application since it had already determined the prayer for injunctive reliefs on merits vide its Ruling dated 18th July, 2024. That in any case, the present Application was a camouflage of the Notice of Motion dated 2nd August, 2023 which the court had pronounced as res judicata, hence the court could not sit on appeal of its own decision and vary the Ruling dated 18th July, 2024.

23. That the present Application was res judicata since there had been numerous suits and Applications seeking injunctive reliefs which had since been determined by courts of competent jurisdiction and which Rulings had never been challenged on appeal or set aside. He thus deponed that the issuance of the prayers sought by the 1st Plaintiff herein would be tantamount to the court sitting on its own appeal.

24. That in any event, the 1st Plaintiff’s equity of redemption had already been extinguished by the auction sale that had been conducted on 24th January, 2019 hence the instant Application was overtaken by events. That subsequently, the only remedy available if any, were damages upon the hearing of the Appeal.

25. The 2nd and 4th Defendants did not respond to the 1st Plaintiff’s Application.

26. Directions were taken that both Applications be disposed off by way of written submissions, wherein the 1st Plaintiff in its submissions dated 17th October, 2024 in support of its Application dated 2nd August, 2024 placed reliance on the provisions of Order 42 and 46 rule 6 of the Civil Procedure Rules as well as the decided case of Erinford Properties Ltd v Cheshire County Council (1974) ALL E.R. 448 to submit that the court had jurisdiction to entertain the present Application wherein the orders sought therein were intended to preserve the substratum of the Appeal until the Application under Rule 5 (2) (b) of the Court of Appeal Rules was heard and determined.

27. That it was not in dispute that the said Application in the Court of Appeal was yet to be heard and nothing could preserve the substratum of the Appeal other than the orders of this court. It thus prayed that the court holds that it has jurisdiction to hear the instant Application and grant the orders sought therein.

28. Regarding the conditions to be satisfied, on argueability of the Appeal, it submitted that the 1st Plaintiff had annexed a Memorandum of Appeal that raised arguable grounds of appeal since the suit had been dismissed upon an application that had been filed in a vacuum. Reliance was placed in the decided case of Triton Petroleum Ltd v Charter House Bank Ltd [2008] eKLR to pray that the court find the same as a proper and arguable ground of appeal. Further reliance was placed in the decided case of Taj Villas Management Limited v Taj Mall Limited [2018] eKLR to submit that the court had admitted evidence on the Applications by the Defendants that had been brought under the provisions of Order 2 Rule 5 yet it was trite that no evidence was admissible under the said provisions. That further, the court had struck out the suit despite the Plaint raising reasonable causes of action against the Defendants which cause of action had not been controverted.

29. That further, the doctrine of res judicata did not apply as the purported previous proceedings were still pending while some had been withdrawn. That it would thus be in the interest of justice for the court of Appeal to determine whether the suit and the Application had been res judicata.

30. That the 1st Plaintiff had demonstrated that the Appeal had been lodged and that the same was arguable. That whereas the Notice of Appeal would have sufficed, the 1st Plaintiff had proceeded to file Nakuru Civil Appeal No. E074 OF 2024. That the 1st Plaintiff had also filed Nakuru Civil Appeal (Application) No E074 of 2024 under Rule 5 (2) (b) of the Court of Appeal Rules. He placed reliance in the decide case of Kenya Tea Growers Association & another v Kenya Plantation and Agricultural Workers Union [2012] eKLR to urge the court to find that its Appeal was arguable.

31. On sufficient cause, it was its submission that the prayers sought were consistent with part of the Ruling being appealed against the Defendants having sought eviction orders which prayer had been dismissed wherein the court had directed them to file substantive proceedings. That the orders sought in the 1st Plaintiff’s Application were in line with the law since the action of the Defendants had contravened the mandatory requirements of Section 152E and 152G of the Land Act. That the mandatory notices to vacate the premises had not been issued and there had been no order of eviction from any court. That since the mode of eviction had been illegal, the court should not condone the same.

32. That the court having dismissed the suit, it did not delve into the Application on merit to find prima facie case on illegality of the sale of the suit property. On the substantial loss and nugatory aspect, it submitted that the suit property housed a running industry whose operations had been hindered and destruction threatened. That the Appeal and the Application for injunction pending Appeal sought to preserve the suit property thus the same would be rendered nugatory were the substratum of the said Appeal illegally taken away from the jurisdiction of the court.

33. That since there would be nothing to injunct pending appeal in the short run as well as in the long run pending hearing and determination of the suit, the judgement of the Appellate court would be rendered an academic exercise. That it was therefore not in doubt that the Plaintiff would suffer prejudice were the joint illegal actions of the Defendants persisted as the 1st Plaintiff’s business operations would be paralyzed and they would be exposed to third party proceedings. Reliance was placed in the decided case of BEATRICE MUMBE NDWIGA v DAVID MUIMI MWINZI (Civil Appeal 203 of 2007) [2008] KEHC 424 (KLR) (26 November 2008) (Ruling). It thus urged the court to hold that the 1st Plaintiff stood to incur substantial loss beyond compensatory damages and that the Appeal and Application in the Court of Appeal would be rendered nugatory.

34. In conclusion, it submitted that the jurisprudence to the effect that it was not incompatible for a court which had dismissed an application for injunction to grant the unsuccessful Applicant injunction pending the hearing and determination of a substantive Application in the Court of Appeal for injunction pending appeal against the dismissal was a well-established principle of law in our jurisdiction. That the prayers were aimed at preserving the status quo in order that the Application in the court of Appeal and the Appeal were not rendered nugatory. It thus urged the court to allow its Application dated 2nd August, 2024 with costs.

35. The 1st and 3rd Defendants in their submissions dated the 21st November 2024 submitted while relying in the case of Nyanjui & another (Suing on their own behalf and as legal representatives of Arthur Nyanjui Gichui) v Gitau (Civil Application E044 of 2022) [2022] KECA 1382 (KLR) (15 December 2022) (Ruling) to submit that the Plaintiffs had no arguable appeal the matter having been litigated over a long period of time where the courts had found that the sale by auction and the subsequent transfer of the suit property had been done lawfully.

36. That further, the Plaintiffs suit had been found to be res judicata and the prayers sought had been overtaken by events as the 1st Respondent had already taken possession of the suit property and made several developments thereon.

37. That on the flip side should the appeal succeed the 5th Respondent being a financial institute of good repute, could easily compensate the applicant if a fault on the auction process was found, and the applicant suffered harm which was compensable and not irreparable and therefore the appeal would not be rendered nugatory.

38. That the court in its ruling of the 18th July 2024 having explicitly confirmed that the prayers for injunctive relief had been subject to multiple legal litigation and therefore was res judicata, a court could not therefore sit as an Appellate body over its own ruling. That’s the doctrine of functus officio therefore barred the court for visiting, varying or reconsidering its decision once a ruling had been made and finalized.

39. That the application was barred not only by the doctrine of res judicata but by principles of functus officio which upheld the finality and integrity of judicial decisions. They sought for the dismissal of the Plaintiffs’ Application.

Determination. 40. The two applications herein dated 30th July 2024 and 2nd August, 2024 by the Plaintiffs herein are similar in nature wherein they seek for orders of injunction restraining the Respondents from dealing in any manner with the subject suit herein namely L.R No. Gilgil Township Block 2/210, pending an appeal.

41. The two applications were filed shortly after this court delivered its ruling on 18th day of July 2024 on a similar application dated the 2nd August, 2023 wherein the Plaintiffs had sought for injunctive orders against the respondents restraining them from dealing with the same suit property being L.R No. Gilgil Township Block 2/210.

42. In the said impugned ruling which the Plaintiffs seek to appeal against, the court had considered the numerous applications previously made by the Plaintiffs in previous matters wherein it had held as follows;‘’I find that the issues in the previous suits/Applications which were substantially the same in the subsequent suit were determined and covered by the respective decisions therein. I also find that parties in the subsequent suit were similar hence estopped from litigating pursuant to the provisions of Section 7 of the Civil Procedure Act. Finally, I find that the previous decisions were determined by courts of competent jurisdiction and the same was not challenged on Appeal and the said decisions not having been overturned by an appellate court remain judgment of court and is enforceable.’’

43. Subsequently the court had dismissed the Plaintiffs’ Application dated the 2nd August 2023 wherein it had struck-out Plaintiffs’ entire suit, setting aside the interim orders of junction that had been granted by the court on 7th August, 2023 and extended on 21st August, 2023.

44. The Black's Law Dictionary, Ninth Edition defines functus officio as follows;“Having performed his or her office (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

45. The Supreme Court of Kenya had also relied on the holding in the case of Jersey Evening Post Limited vs Al Thani [2002] JLR 542 at 550 to the effect that:“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”

46. This matter having been concluded in Nairobi High Court Comm Case No. 87 of 2019; Equip Agencies Limited v I & M Bank and 2 others wherein judgment had been entered for the 1st and 2nd Defendants in accordance with terms set out in the Deed of Settlement dated 10th June 2021 by a court of competent jurisdiction. The suit property had been sold to the 1st Defendant in a public auction and thereafter transferred wherein a new lease had been issued.

47. The judgment of the court having been perfected, the Plaintiffs’ previous applications for injunction having been rejected by previous courts therein filed and subsequently by this court whereby the suit had been declared res judicata, the Plaintiffs having elected to appeal against the said Ruling of the court, this court is functus officio and without jurisdiction to entertain the instant Applications dated the 30th July 2024 and 2nd August 2024 which are herein dismissed with costs.

DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIVASHA THIS 16TH DAY OF JANUARY 2025M.C. OUNDOENVIRONMENT & LAND – JUDGE