[2014] KEHC 3971 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

ENVIRONMENT & LAND COURT

CIVIL CASE NO.312 OF 1983

EVANS NJOKABI NGAIRE )

JOSEPH MURAGE )

NAHASHON GITHINJI NGAIRE)............................................PLAINTIFFS

VERSUS

STANLEY GACHOKI NGAIRE (alias)

(substituted by James Gichangi Gachoki)........................................... DEFENDANT

R U L I N G

On 23/11/1983, Evans Njokabi Ngaire, Nahashon Githinji Ngaire and Joseph Murage Ngaire filed a suit against Stanley Gachoki Ngaire alias Gachoki Gichangi, for a declaration that land No.INOI/KARIKO/130 is registered in the name of the defendant in trust and that an order be issued for subdivision of the said land and the subdivided parcels be registered in the names of plaintiffs and the defendants into 4 equal portions. They also prayed for costs of the suit.

The suit was referred for arbitration by Justice Togbor on 26/3/1987 to the District Officer Baricho whose duty was to appoint elders to hear the matter. The elders were to arbitrate and cast their vote.

The District Officer referred the dispute to the elders whereupon the plaintiff appeared but the defendant did not. The plaintiff's elders decided to proceed and recommended that “since the defendant had been summoned several times without turning up, the land should be divided into four portions. The parties were brothers, their father died without appearing in court. The son who could have taken up the matter also failed to appear in court and therefore the land was to be divided as stated by plaintiffs.”

The Chairman's award was that the land be subdivided into four portions amongst the brothers. This decision was signed and filed on 15/12/1992 and read to the parties on 9/2/1993.

On the 31/8/1993 the plaintiff filed an application by way of chamber summons that this court be pleased to enter judgment in terms of the award that had been read in the presence of all parties.

The matter was listed in court several times before justice Ang'awa. On the 11/10/1994 it was brought before Justice Ang'awa when she gave parties time to study the case and take appropriate steps as the title under which the parties were litigating was no longer in existence.

On the 11th of December 1998, after inordinate delay of 4 years , Honourable Justice Juma on his own motion dismissed the suit for want of prosecution pursuant to the provisions of Order XVI rule 6 of the Civil Procedure Rules as it then was. Though there was unexplained delay,no notice was given to parties before this action was taken. The action of the Honorable Judge as he then was with due respect was erroneous despite the fact that the plaintiff was guilty of laches as no notice of intention to dismiss was given.

The practice at the time was that the court would give notice to the plaintiff before dismissing the suit for want of prosecution. Rules of Natural justice require that before a person is punished he should be heard and therefore notice ought to have been given.

On the 29/9/1999, the plaintiffs filed an application under certificate of urgency when Nahashon Ngaire died and the respondent declined to have him buried on the parcel of land. The plaintiffs applied for reinstatement of the suit and the variance and entry of judgment in terms of the award. The matter came for hearing before Justice Vitalis O. Juma. Mrs Rika appeared for applicant while Miss Mwihaki appeared for the respondent. The Honorable Judge did not entertain the parties and stood over the matter generally because the supporting affidavit was sketchy. The application dated 20th September 1999 is still on record and hasn't been dealt with. No further affidavit has been filed.

On the 15th of October 2012, the 1st substituted plaintiff applicant filed a notice of motion dated 15/10/2012 for orders inter alia that the honorable court be pleased to review and set aside the orders of 11/12/1998 dismissing the suit and reinstate the same for purposes of implementing the award herein.

The application is based on grounds that the award was filed in court with a finding that the subject matter parcel of land INOI/KARIKO/130 be shared equally between Evans Njokabi Ngaire, Nahashon Ngaire, Joseph Murage Ngaire being plaintiffs and Stanley Gachoki Ngaire alias Gachoki Gachanji being the defendant. However,after the award was filed and before the same was adopted as judgment the original defendant subdivided the aforesaid parcel of land and had the same registered in the names of his two sons James Gichangi Gachoki (deceased) and Geoffrey Ndege Gachoki. The applicant argues that the transfer of the aforesaid parcel of land by the original defendant was aimed at defeating the award of elders that has never been set aside or appealed against. He is desirous of enjoining the defendants surviving son Geoffrey Ndege Gachoki and the defendants deceased son's wife Mary Wanjira Gichangi. The interest of the deceased's plaintiff will be catered for after cancellation of the titles fraudulently obtained by the deceased defendant's sons. She complains that after she substituted the 1st plaintiff her then advocates on record never moved the court to have the matter heard and determined to its logical conclusion. She came to learn in September 2012 that this suit was dismissed by the court for want of prosecution when some of the parties had passed on an issue that was not communicated to court and now seeks the Honourable Court to set aside and review it's orders dismissing the suit to enable her proceed with the case. Lastly she seeks for leave to amend the plaint so as to reflect the names of the deceased defendant's son and his daughter in law being the beneficiaries of the original parcel of land INOI/KARIKO/130 and claims the intended defendants/respondents will not be prejudiced in any way if the orders sought are granted.

The application is supported by the affidavit of Beatrice Muthoni Njokabi the wife of the late Evans Njokabi Ngaire who states that the suit was brought by her late husband and his two brothers, who are all deceased, against Stanley Gachoki claiming entitlement of a portion in land parcel No.INOI/KARIKO/130. The explanation given by the applicant for this application is that the suit was dismissed without her knowledge since, there was no communication either from the court or the plaintiffs advocate then on record about the dismissal. As I said before, there is nothing on record to show that either the plaintiffs or their advocate were notified of the intended dismissal.

On the 22/11/2012, the 2nd defendant/Respondent filed grounds of opposition and a preliminary objection whose gist is that the application is fatally defective and brought under the wrong provisions of the law. He argues that he did take out Succession proceedings through the public trustee and no objection was raised by the applicants and that the application is brought too belatedly with unclean hands. He contends that the applicants lack any locus standi to bring forth this suit as no letters of Administration Ad litem have been taken out. The dismissal of the suit on 11th December 1998 is a clear indication the original plaintiff was not interested in the prosecution of the suit. He states that Ends of justice demand that litigation must come to an end and technically the application is time barred having been brought over 14 years later when even the initial judgment and/or award has since become null and void by virtue of 12 years lapsing which delay is not explained and the applicant does not explain when she discovered the existence of the suit.

Further the respondent filed a replying affidavit whose import is that the suit herein was dismissed for want of prosecution on 11/12/1998 because the 1st substituted plaintiff was not following it. Moreover, the subdivision of the land had been done and the plaintiff did not file an application to stop the same.

The respondents view is that the application was an afterthought and that he was the registered proprietor of land parcel No.INOI/KARIKO/105 which was transferred to him more than 12 years before the filing of the application. He stated that he was likely to suffer irreparable loss since he had extensively developed the parcel of land.

On the 31/1/2013 the honourable court granted leave to Jane Wanjiru Githinji the only daughter of Nahashon Githinji Ngaire to file a supplementary affidavit. She filed the same on the 22nd February 2013 whose import is that she came to learn that there was a case between her father and his brothers over the suit parcel of land which belonged to their grandfather and which was supposed to be shared between his father and brothers.

She was informed that one of her father's brother who was registered as proprietor was registered in trust for his brothers and that after the decision of the D.O. Baricho that the land be shared amongst the brothers he had the land subdivided into two portions which he later transferred to his sons.

By the time the suit was dismissed the original land ceased to exist and her father who was the 3rd plaintiff and the 2nd plaintiff had died.

On the 22/2/2013, the plaintiff applicant filed a supplementary affidavit pursuant to the order of the court made on 31/1/2013 whose import is that she was not notified of the intention to dismiss the suit by the court. She is old and been ailing since her husband passed on and has no service of income and unable to visit her advocates office.

The respondents are her relatives and have always been aware of the award of the District Officer Baricho. She stated that the respondents have been developing the land with full knowledge of her entitlement. Before her father in law had died, she had subdivided the whole parcel of land in 4 portions according to the number of sons and her husband was buried on the side he had been shown by his father which falls on the 2nd respondents portion.

The 1st respondent replied to the application by filing the replying affidavit sworn on 21/3/2013 which goes into the merit of the suit but does not answer the allegation by the plaintiff that she was not aware that the suit was dismissed without her knowledge or the knowledge of the advocate.

I have read the application, supporting affidavit, supplementary affidavits and the replying affidavit grounds of opposition and the preliminary objections and to reach my verdict, I do ask myself one question, was the dismissal of the suit done fairly?

I do find that the plaintiff counsel was not given Notice of dismissal of suit before the same was dismissed contrary to the practice of that time, when the court would give notice for dismissal of suit for want of prosecution. Though it was not explicit in order XVI rule 6 that such Notice was to be given, it is a rule of Natural Justice that before you condemn a person you should afford him an opportunity to be heard. The honourable court should have applied the overriding objective of the court and the inherent jurisdiction to require that the plaintiffs be served with a Notice of dismissal of suit before dismissing the same.

Though the plaintiffs are guilty of laches and it is true that Equity does not help the indolent, the plaintiff has demonstrated that the matter took a twist after the award of the District Officer Baricho, when the defendants subdivided the land and transferred it to his sons to defeat the award aforesaid. The plaintiff allege that the suit land was family land and therefore the Stanley Gachoki Ngaire (deceased) was holding the same in trust for the plaintiffs but breached the trust by distributing the land to his family.

However, this court observes that the applicant is not truthful when she states that she did not know that the suit had been dismissed until September 2012 because on the 22/9/1999 the plaintiff applied for the reinstatement of the suit in the application dated 20th of September 1999 and filed on 22nd September 1999 hence this court finds that she was aware that the suit had been dismissed otherwise why would she apply for its reinstatement. It is trite law that he who comes to equity must do equity and must act in good faith. The plaintiff is not acting in good faith when she states that she became aware of the dismissal in the year 2012 whilst she became aware of the dismissal when her husband died in 1999.

This court finds that he application was brought belatedly 14 years after dismissal. The application is also an abuse of the process of court as there is a pending application dated on 20/9/1999 seeking for the same orders which has never been prosecuted. The supporting affidavit in the said application is sworn by the applicant herein. The delay in filing the second application to set aside is not explained and I agree with the defendant/respondent that litigation has to come to an end for the ends of justice to be met. Indeed Article 159 (b) of the Constitution of Kenya provides that justice shall not be delayed. The court finds that the plaintiffs excuses do not explain the inordinate delay in making the application to reinstate the suit. Though this court has discretion to review and set aside the orders of 11th December 1998 dismissing the plaintiff's suit and reinstating the same is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error the same is not designed to assist the person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the cause of justice, or has become indolent. The applicants failure to move court through her lawyer or herself for a period of 14 years is evidence of indolence.

The upshot of the above is that the application is dismissed with costs.

Dated and Delivered at Nyeri this 4th day of July 2014

A. OMBWAYO

JUDGE