[2019] KEELC 3426 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

ELC CASE NO. 11 OF 2014 (O.S)

GEORGE WEPUKHULU...............................................PLAINTIFF

VERSUS

ALFRED WAFULA KHAUKA being sued

as Administrator of the Estate of the late

LUKA MASAKHA.......................................................DEFENDANT

R U L I N G

What falls for my determination in this case is the Defendant/Applicant’s Notice of Motion dated 25th September 2018 seeking the following prayers:-

(a) Spent

(b) Spent

(c) That it pleases the Honourable Court to review vary and set aside the exparte decree herein on such terms it deems fit.

(d) The suit herein be set down for hearing inter – parte and or be struck out for want of jurisdiction.

(e) Costs be provided for.

The application is premised under the provisions of Sections 3, 3A, 63 (1) and (2) and 80 of the Civil Procedure Act and Orders 45 Rules 1, 2, and 3 of the Civil Procedure Rules and based on the grounds set at therein. It is also supported by the Defendant/Applicant’s affidavit.

The gist of the application is that there is an error on the face of the record herein because the plaintiff/Respondent was the Objector in Succession proceedings in BUNGOMA SUCCESSION CAUSE NO 15 OF 1999 in respect to the land parcel NO E. BUKUSU/S. KANDUYI/121 and could not therefore file this suit for adverse possession. That the ruling by the late MUKUNYA J in which he refused to set aside the ex – parte Judgment has now caused a stalemate in that the defendant/Applicant cannot enjoy his father’s Estate because there are contradicting orders. Further, that the Defendant/Respondent did not file objection proceedings in BUNGOMA SUCCESSION CAUSE NO 15 OF 1999.

Annexed to the Supporting Affidavit are the following documents:-

1. Ruling by SERGON J in BUNGOMA HIGH COURT SUCCESSION CAUSE NO 15 OF 1999.

2. Certificate of Search in respect to parcel NO E. BUKUSU/S. KANDUYI/121.

3. Certificate of Confirmation of Grant in respect of the Estate of LUKA MASAKHA issued in BUNGOMA SUCCESSION CAUSE NO 15 OF 1999.

4. Order issued by ARONI J in BUNGOMA SUCCESSION CAUSE NO 15 OF 1999.

The application is opposed and the plaintiff/Respondent filed a Replying Affidavit dated 19th November 2018 in which it is deponed, inter alia, that the Defendant/Applicant did not participate in the proceedings that led to the Judgment sought to be set aside and cannot therefore seek to have it reviewed and this application lacks merit and should be dismissed. That his father had sought to be enjoined in BUNGOMA SUCCESSION CAUSE NO 15 OF 1999 but later withdrew and that is when this Originating Summons was filed by the plaintiff/Respondent and it was served upon the Defendant/Applicant who did not file any responses nor attend the hearing though served and after hearing the matter, MUKUNYA J delivered a Judgment in his favour on 30th January 2017. That there is therefore no error apparent on the face of the record as the plaintiff/Respondent had been in occupation of 3½ acres out of the land parcel NO E. BUKUSU/S.KANDUYI/121 and was entitled to orders in adverse possession.

The application has been canvassed by way of written submissions filed by J. W. SICHANGI ADVOCATE for the Defendant/Applicant and BULIMO & COMPANY ADVOCATESfor the Plaintiff/Respondent.

I have considered the application, the rival affidavits and submissions by counsel.

What is clear from the record herein is that by an Originating Summons dated 9th January 2014 and filed herein on 17th January 2014, the Plaintiff/Respondent sought the main order that he be registered as the proprietor of a portion measuring 3½ acres from land parcel NO EAST BUKUSU/SOUTH KANDUYI/121 (the suit land) then registered in the names of LUKA MASAKHA (deceased) but whose Estate was being administered by the Defendant/Applicant herein. The plaintiff/Respondent’s claim to the suit land was hinged on adverse possession having been in occupation thereof since 1968 when his father had purchased it from the deceased. It would appear from the record that the Defendant/Applicant did not file any response to the Originating Summons and on 8th June 2015, the hearing proceeded ex – parte before MUKUNYA J who delivered a Judgment on 30th July 2015 directing that 3½ acres out of the suit land be registered in the names of the plaintiff/Respondent.

An application by the defendant/Applicant dated 4th April 2017 seeking to set aside the said Judgment and also to cross – examine the Process Server and allow the filing of a Replying Affidavit out of time was dismissed by MUKUNYA Jby his ruling dated 4th October 2017. No appeal appears to have been filed against the ruling. I cannot therefore re-visit the issue of setting aside the ex-parte Judgment because that was dealt with by MUKUNYA J and dismissed in his ruling dated 4th October 2017 and is therefore res – judicata.

The defendant/Applicant has also asked that the suit be struck out for want of jurisdiction. The suit has already been heard, determined and a decree drawn. No appeal was filed against the Judgment delivered on 30th July 2015 by MUKUNYA J. There is really no suit capable of being struck out for want of jurisdiction. That is water under the bridge. Even assuming that the issue of jurisdiction was properly raised, there is nothing to show that MUKUNYA J had no jurisdiction to determine the dispute before him which was based on a claim of adverse possession.

What I gather from the submissions by MR SICHANGI ADVOCATE is that since the suit land was registered in the names of the deceased and was part of the subject in BUNGOMA SUCCESSION CAUSE – NO 15 OF 1999, then MUKUNYA J should not have determined this case. This is what MR SICHANGIhas submitted:-

“Your Lordship our big argument is that the land Court is essentially the Court that deals with those parcels of land that are registered in the names of living persons. When this Honourable Court heard and determined a suit in respect of land registered in the names of a deceased person even if succession was pending, it was an error.”

The answer to that submission is that a claim for adverse possession can be instituted against the Estate of a deceased person. This was confirmed in KARUNTIMI RAIJI .V. M’MAKINYA M’ITUNGA C.A CIVIL APPEAL NO 325 OF 2009 (2013 eKLR). See also Section 2(1) of the Law Reform Act which provides that:-

“Subject to the provisions of this section, on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or as the case may be, for the benefit of his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.”

See also J MAKOKHA & OTHERS .V. FERDINAND MUFUTU & ANOTHER BUNGOMA ELC CASE NO 21 OF 2009 (2019 eKLR). Those authorities and the law should answer the issue raised by MR SICHANGI when he submits further that:-

“Our final submission is if no review is done, how will the Judgment herein be effected to sub-divide and transfer land measuring 3½ acres from the names of a deceased person to the decree holder’s names.”

Having elected not to appeal the Judgment of MUKUNYA J delivered on 30th July 2015, the Defendant/Applicant, as the Administrator of the Estate of the deceased, has no option but to abide by the decree that followed.

Is the Defendant/Applicant entitled to orders to review the said Judgment? Order 45 Rule 1(1) of the Civil Procedure Rules provides as follows:-

1(1) “Any person considering himself aggrieved –

(a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowedand who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order may apply for a review of Judgment to the Court which passed the decree or made the order without unreasonable delay.” Emphasis added

Therefore, an application for review must be based on:

1. Discovery of new and important matter or evidence or,

2. Some mistake or error apparent on the face of the record, or

3. Any other sufficient reason and

4. Must be made without un-reasonable delay.

My understanding of the Defendant/applicant’s Notice of Motion dated 26th September 2018 is that it seeks a review of the Judgment dated 30th July 2015 and the decree that followed since there is an error on the face of the record because the plaintiff/Respondent’s claim ought to have been made in BUNGOMA SUCCESSION CAUSE NO 15 of 1999. The answer to that plea is that a succession Court cannot determine a claim in adverse possession – STEPHEN MUNENE GACHUIRI & ANOTHER .V. WANOI KARANI C.A CIVIL APPEAL NO 273 OF 2007 (as consolidated with NO 274 OF 2007). See also VINCENT GATIMU GITAKU .V. CHARITY WANGECHI NGARI KERUGOYA ELC CASE NO 353 OF 2013 (2017 eKLR). Therefore, the fact that MUKUNYA J delivered a Judgment concerning property that had been the subject of a succession cause is not in my view, an error apparent on the face of the record to warrant a review of that Judgment. If anything, that can only be an error of law which is not a ground for review – NATIONAL BANK OF KENYA .V. NDUNGU NJAU C.A CIVIL APPEAL NO 211 OF 1996.

Finally, an application for review must be made without unreasonable delay. In ORIGO & ANOTHER .V. MUNGALA 2005 2 KLR 307, the Court of Appeal stated that:-

“From the foregoing, it is clear that an applicant has to show that there has been discovery of new and important matter or evidence which after due diligence, was not within his knowledge or could not be produced at that time or he must show that there is some mistake or error apparent on the face of the record, or that there was any other sufficient reason. And most importantly, the applicant must make the application for review without unreasonable delay.” Emphasis added.

The Judgment subject of this review application was delivered on 30th July 2015. This application was filed on 26th September 2018 over three (3) years later which, in my view, amounts to un-reasonable delay and which has not even been explained. Clearly therefore, the Defendant/Applicant cannot be deserving of any orders for review.

The up – shot of the above is that the Notice of Motion dated 26th September 2018 is devoid of any merit. It is hereby dismissed with costs to the Plaintiff/Respondent.

Boaz N. Olao.

JUDGE

9th May 2019.

Ruling dated, delivered and signed in Open Court this 9th day of May 2019.

Mr. Bwonchiri for Mr. Kundu for plaintiff present

Mr. Milimo for Mr. Sichangi for defendant present

Defendant also present

Boaz N. Olao.

JUDGE

9th May 2019.