[2021] KEELC 4600 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MALINDI

ELC CASE NO. 25 OF 2012

FATUMA ABDALLA AHMED.............................................PLAINTIFF

VERSUS

1. KAHIRO KIMANI

2. LOCAL AUTHORITIES PENSION TRUST FUND...DEFENDANTS

RULING

1. By the Notice of Motion dated and filed herein on 29th August 2019, the Local Authorities Pension Trust (the 2nd Defendant/Applicant)

Prays for orders: -

2. That the Honourable Court be pleased to set aside the orders of this Court dated 1st April 2019 and any other consequential orders attendant thereto;

3. That the Honourable Court Orders for file No. 19 of 2016; Kimani Kahiro versus Commissioner of Prisons & Others, Office(r) Commanding G.K. Prison, Hindi & Honourable Attorney General to ascertain ownership of this parcel of land;

4. That this Honourable Court be pleased to refer this matter to the DCI or the DPP for further investigations; and

5. That the costs of this application be provided for.

2. The application which is supported by an affidavit sworn by the Applicant’s Advocate George Kithi is based on the grounds: -

a. That the Plaintiff filed an application dated 13/02/2019 which was set down for inter-partes hearing on 1/4/2019;

b. That this Court issued orders on 25/02/2019 ordering the 2nd Defendant’s Officials Hosea Kili and Charles Muiruri to appear before Court on the day of inter-partes hearing on 01/04/2019 failure to which warrants of arrest would issue;

c. That the Orders issued on 25/02/2019 were as a result of misrepresentation to the Court that the 2nd Defendant was a Judgment debtor yet it was not;

d. That therefore the 2nd Defendant/Applicant filed an application dated 29/03/2019 clarifying that fact to the Court, an application which was meant to be heard together with the Plaintiff’s application on 1/04/2019;

e. That the Court however issued warrants of arrest against the Applicant despite their application which remains pending;

f. That the Applicant is not a Judgment Debtor as he owes no obligation to the Plaintiff herein and therefore his arrest (sic) is wrongful and unfair;

g. That it is only just that the Court sets aside the orders issued on 1/04/2019 as the Applicant is not a Judgment Debtor and orders cannot issue against non-existent party.

3. The application is opposed. In a Replying Affidavit sworn and filed herein on 23rd October 2019, Fatuma Abdalla Ahmed (the Plaintiff) avers that the Applicant is still a Judgment Debtor and therefore the orders issued were lawful. The Plaintiff further avers that the terms of the consent referred to in the Supporting Affidavit were conditional and the Applicant could only invoke the same as a defence if the terms therein were properly met.

4. The Plaintiff further states that the Replying Affidavit relied on to allegedly show ownership of the land does not identify the suit property and that in any event what is annexed is a mere affidavit and not the decision of the Court which conclusively determined the ownership.

5. The Plaintiff urges the Court to reject the application on account she stands to suffer harm because she is kept from realizing her Judgment for no proper cause.

6. The application is however supported by the 1st Defendant/Respondent-Kimani Kahiro. In a Replying Affidavit filed herein on 23rd October 2019, he avers that when the Plaintiff approached him to sell the suit property, he performed due diligence and obtained a Search Certificate showing the property belonged to the Plaintiff. Upon transfer of the property to his name, the 1st Defendant entered into an Agreement of Sale with the 2nd Defendant and subsequently transferred the property.

7. The 1st Defendant avers that it was a condition of the sale agreement that he should erect a perimeter wall on the property but when he did so, the wall was brought down by the Hindi GK Prison Authorities. When the 1st Defendant filed a suit against the Government it emerged that the property may not have belonged to the Plaintiff after the same was compulsory acquired by the Government.

8. Accordingly, the 1st Defendant supports the position that an investigation be done to determine the ownership of the suit property as at the time the Plaintiff sold the same to himself.

9. I have considered the application and the respective responses thereto. I have equally perused and considered the rival written submissions and authorities placed before me by the Learned Advocates for the parties.

10. The 2nd Defendant/Applicant has urged this Court on the main to set aside the orders of this Court issued on 1st April 2019. The Court’s power in considering an application to set aside an interlocutory Judgment or order is discretionary. As was held in Patel –vs- EA Cargo Handling Services Ltd (1974) EA 75: -

“There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex-parte Judgment except that if he does vary the Judgment, he does so on such terms as may be just. The main concern of the Court is to do justice to the parties and the Court will not impose conditions on itself to fetter the wide discretion given it by the rules.”

11. In the same vein, it was stated in Shah –vs- Mbogo (1967) EA 166, that: -

“…this discretion to set aside an ex-parte Judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

12. In the matter before me, the Applicant urges this Court to set aside the orders granted on 1st April 2019 on account that their application dated 29th March 2019 which was meant to explain why warrants of arrest should not be issued against its Officers, was not heard by the Court.

13. A perusal of the record herein reveals that there were Notices to Show Cause issued by this Court on 22nd June 2018 and 26th July 2018- against the 1st Defendant as well as two officials of the 2nd Defendant Pension Trust. When the matter came up before the Deputy Registrar of this Court on 15th October 2018, the parties were all represented and the Court then ordered that the 1st Defendant and the named officials of the 2nd Defendant do attend Court on 12th November 2018 to Show Cause why execution should not issue against them. On the given date however, both parties were not ready to proceed and the matter was adjourned generally.

14. The Notice to Show Cause was subsequently listed for hearing on 25th February 2019. When the matter came up for hearing, Mr. Kithi, Learned Counsel for the 2nd Defendant/Applicant applied for more time ostensibly to put in a response to the Notice to Show Cause. Mr. Gikandi, Learned Counsel for the 1st Defendant equally requested for time stating his Client had been unwell.

15. Having noted the two applications and the Plaintiff’s Objection thereto, the Honourable D. Wasike, Deputy Registrar made orders as follows: -

Court:

The Judgment Debtors are not in and there is no evidence tendered to show that they are sick or indisposed. The Notice to Show Cause dated 13/2/2019 to be heard on 01/04/2019. The personal attendance of Mr. Kahiro Kimani, Mr. Charlie Muiruri and Mr. Hosea Kili is required failure to which Warrants of Arrest shall be issued against them. The Decree/Holder Advocates costs for the day to be paid by the Judgment/Debtor.”

16. Despite the request for time, the Applicant herein did nothing for another one month. Some three days to the date scheduled for the Notice to Show Cause, the Applicant filed an application under Certificate of Urgency seeking to set aside the Orders issued by the Court on 25th February 2019. This Court declined to certify the matter as urgent.

17. On 1st April 2019 when the matter came up, the 1st and 2nd Defendants again sought for more time to oppose the Notice to Show Cause, a request which was declined by the Court and Warrants of Arrest were issued after it became clear that the officials who had been summoned to attend Court were absent without an explanation.

18. As it were, there was absolutely no explanation given why the Applicants had failed to Show Cause within the time given. No explanation had been given herein either save for the attempt to fault the consent Judgment herein. This suit was filed in the year 2012 and the same ought to have been concluded. As was stated in Shah –vs- Mbogo (Supra), the discretion of this Court to set aside its earlier orders is not meant to assist one who has deliberately sought as the Applicants have done, to obstruct or delay the cause of justice.

19. In the premises, I did not find any merit whatsoever in the Motion dated 29th August 2019. The same is hereby dismissed with costs to the Plaintiff.

Dated, signed and delivered at Malindi this 29th day of January, 2021.

J.O. OLOLA

JUDGE