[2024] KEELC 14021 (KLR)

Hainja v Opondo (Environment & Land Case 50 of 2013) [2024] KEELC 14021 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 14021 (KLR)

Republic of Kenya

In the Environment and Land Court at Busia

Environment & Land Case 50 of 2013

BN Olao, J

December 11, 2024

Between

Peter Lucas Hainja

Plaintiff

and

Paskal Okoch Opondo

Defendant

Ruling

1. Peter Lucas Hainja (the Plaintiff) filed this suit by way of an Originating Summons seeking against Pascal Okoch Opondo (the Defendant) the substantive remedy that he had acquired by way of adverse possession a portion of land measuring 70 feet by 100 feet comprised in the land parcel No Bunyala/bukoma/306 (the suit land).

2. In his response to the Originating Summons, the defendant not only described the Originating Summons as being bad in law, scandalous, vexatious and an abuse of the process of this Court but went on to add that it was sub-judice as there was pending at this Court Busia ELC Case No 28 of 2013 involving the same parties and subject matter.

3. This Court, after hearing the evidence by the parties, determined that the suit was res judicata and proceeded to strike it out vide a judgment delivered on 6th March 2024.

4. The Plaintiff has now moved to this Court vide his Notice of Motion dated 24th July 2024. He seeks the following orders:1. That this Honourable Court be pleased to review and/or set aside its judgment delivered on 6th March 2024. 2.That costs of this application be provided for.

5. The application is premised on the provisions of Sections 1, 1A, 1b, 3, 3A and 63(e) of the Civil Procedure Act, Order 45 Rule 1(1) (a) (b) and 2, Order 41 Rule 10(1) and (2) of the Civil Procedure Rules and other enabling provisions of the law. It is based on the grounds set out therein and supported by the affidavit of the Plaintiff. The gist of the application is that in the judgment delivered on 6th March 2024, this Court may not have noticed that the parties in this case and the parties in Busia ELC Case No 28 of 2013 were different and hence this suit is not res judicata.

6. When the Notice of Motion came up on 1st October 2024, Mr Ashioya Counsel for the Plaintiff informed the Court that he had served Mr Wanyama counsel for the defendant with the same but had not been serve with any response. I therefore fixed it for ruling on 5th December 2024. I noticed from the record however that MR WANYAMA did write a letter to me dated 1st October 2024 to which he annexed Grounds of Opposition and submissions to the application stating that he had not been served. That letter was never brought to my attention yet it is addressed to me. There is also an affidavit of service by one Elijah Amukhale Okutima showing that MR Wanyama was infact served with the application on 7th August 2024. It is not clear how the Grounds of Opposition found their way into this file after I had set a ruling date. The same are expunged from the record and the Deputy Registrar to caution the Registry about receiving and filing pleadings or other documents without my express permission once the file has been closed for ruling or judgment. This Court will therefore treat the Motion as un-opposed.

7. Notwithstanding the fact that the Motion is not opposed, this Court must consider it in accordance with the applicable law and relevant precedents.

8. The Plaintiff seeks the main remedy that this Court reviews and sets aside the judgment delivered on 6th March 2024. The power to review a judgment in provided for in Section 80 of the Civil Procedure Act. It reads:80:“Any person who considers himself aggrieved-(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.”The procedure for invoking the above provision is set out in Order 45 Rule 1(1) of the Civil Procedure Rules as follows:45 (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 allowed, and 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.”Therefore, to be entitled to the remedy of review of the judgment herein, the Plaintiff must satisfy the following conditions:1. Demonstrate that there is a 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 when the order was made; or2. Show some mistake or error apparent on the face of the record; or3. Provide any other sufficient reason; and4. Approach the Court without unreasonable delay.If I may start with the 4th condition above, the judgment sought to be reviewed was delivered on 6th March 2024 by way of electronic mail to all the parties. There is nothing to suggest that the Plaintiff or his counsel were not aware about the delivery of the judgment on that date. Indeed in his own supporting affidavit, the Plaintiff acknowledges that the judgment was delivered on 6th March 2024. This application was filed 24th July 2024 after a delay of 4 months and 18 days which, in the circumstances, is unreasonable. No explanation has been offered for that delay. There can be no reason why this Court should exercise its discretion in favour of the Plaintiff in the absence of any satisfactory explanation for that unreasonable delay. On that ground alone, this application can only be for dismissal.

9. The above notwithstanding, the Court will proceed and consider the main ground on which this application is founded. And that is that this Court may not have noticed that the parties in this case and in Busia ELC Case No 28 of 2013 were different. So what the Plaintiff is stating is that there is “some mistake or error apparent on the face of the record.” The Plaintiff’s suit was struck out for being res judicata. The Court went on to add that even on it’s merits, the claim for adverse possession with respect to the suit land could not be sustained. From the record, I am not satisfied that this Court made a mistake by failing to notice that the parties in this case and in Busia ELC Case No 28 of 2013 were different. An error or mistake apparent on the face of the record must, as was held in the case of Nyamogo & Nyamogo -v- Kogo 2001 EA 174, must be such an error which “stares one on the face and there could reasonably be no two opinions.” In the case of the judgment herein, this Court stated as follows in paragraph 22. “Upon perusal of the judgment in Busia ELC Case No 28 of 2013, I confirmed that it involved Pascal Okoth Opondo the defendant herein as the Plaintiff and Lucas Peter Hainja (who is named in this case as Peter Lucas Hinja) as the 1st defendant. The 2nd defendant was one Nicholas Ombere Obiba and the dispute involved the land parcel NO Bunyala/bukoma/306 which is the same land subject of this suit. The Plaintiff in that suit and who is the defendant in this suit, was seeking an order of permanent injunction to restrain the Plaintiff in this suit and one NICHOLAS OBIBA from the suit land.”It is also clear from the proceedings of 27th July 2023 before Omollo J that when the defendant was cross-examined by MR ASHIOYA, he said:“It is true that I had filed a replying affidavit filed on 28th August 2013. It is signed by me though not dated. In the said affidavit, I have said that I filed a case for trespass against the defendant. The case is NO 28 of 2013. ”Further, in the Plaintiff’s own submissions dated 20th August 2023 and filed on 28th August 2023, it is submitted thus:“The Respondent only mentions land case NO 28 of 2013, we do submit that this case was instituted by the Plaintiff more than 40 years after the Applicant’s rights as an adverse possessor had accrued, secondly it is worth noting that from the annexed plaint to the Respondent’s affidavit, the case was filed in Court on the 4th September 2013 seeking orders for eviction of the Applicant herein, yet this instant case was filed on the 03 July 2013. It is our submission that, upon the Respondent having been served with summons to enter appearance in this case together with the pleadings, the Respondent, in an attempt to circumvent the ends of justice, rushed and filed land case NO 28 of 2013. ”It is therefore clear beyond peradventure that the parties herein had also litigated previously in Busia ELC Case No 28 of 2013. The suggestion that this Court may not have noticed that the parties in this case and in Busia ELC Case No 28 of 2013 were different is not supported by any tangible evidence. Indeed the parties themselves confirm that they previously litigated in Busia ELC Case No 28 of 2013 and if the parties in that case were different, this Court has not been informed either through the submissions or the pleadings who the parties in Busia ELC Case No 28 of 2013 were. As is clear from paragraph 22 of the judgment herein, I called for and perused the file NO Busia ELC Case No 28 of 2013 before concluding that it involved the same parties and subject matter as in this case.

10. The up-shot of all the above is that the Notice of Motion dated 24th July 2024 is devoid of merit. It is dismissed with no orders as to costs since the defendants filed his Grounds of Opposition late, without leave and the same have been expunged from the record.

BOAZ N. OLAOJUDGE11THDECEMBER 2024RULING DATED, SIGNED AND DELIVERED ON THIS 11THDAY OF DECEMBER 2024 BY WAY OF ELECTRONIC MAIL WITH NOTICE TO THE PARTIES.BOAZ N. OLAOJUDGE11THDECEMBER 2024