[2019] KEELC 2356 (KLR)
The court found that both parties' counsels had, at different times, failed to fully disclose the true status of occupation of the suit land. However, the respondent's counsel's misrepresentation on 8.4.2019 regarding the execution status fundamentally altered the course of the proceedings, leading to the...
Source-derived case information.
- Citation
- [2019] KEELC 2356 (KLR)
- Parties
- Appellant: Joel Kilambu; Appellant: Patrick Mwiti; Appellant: Joshua Kimathi; Respondent: Shadrack Nkubitu Mugwika
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 46 of 2019
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay Pending Appeal
- Outcome
- Applicants to be reinstated to the suit land pending determination of the stay application.
- Legal Topics
- Stay of Execution, Eviction Proceedings, Status Quo Orders, Disclosure of Material Facts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Kilambu
Appellant
Patrick Mwiti
Appellant
Joshua Kimathi
Appellant
Shadrack Nkubitu Mugwika
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicants should be reinstated to the suit land pending the hearing and determination of the stay application.
- 2 Whether there was material non-disclosure or misrepresentation by either party regarding the status of occupation of the suit land.
- 3 Whether the court was misled as to the true state of affairs at the time of hearing the stay application.
Ratio Decidendi
The court found that both parties' counsels had, at different times, failed to fully disclose the true status of occupation of the suit land. However, the respondent's counsel's misrepresentation on 8.4.2019 regarding the execution status fundamentally altered the course of the proceedings, leading to the applicants' eviction. The court held that such misrepresentation should not be allowed to prejudice the applicants' rights pending the determination of their stay application. Accordingly, the court ordered that the parties revert to the position as at 8.4.2019, meaning the applicants should be reinstated to the suit land until the stay application is heard and determined.
Court Disposition
Applicants to be reinstated to the suit land pending determination of the stay application.
Orders
- Parties to revert to the position as at 8.4.2019.
- Applicants to be reinstated to the suit land until the application for stay is heard and determined.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC APPEAL NO. 46 OF 2019
JOEL KILAMBU...............................................................1ST APPELLANT
PATRICK MWITI.............................................................2ND APPELLANT
JOSHUA KIMATHI..........................................................3RD APPELLANT
VERSUS
SHADRACK NKUBITU MUGWIKA.................................RESPONDENT
RULING
1. The appellants were the defendants in Tigania PMCC 98 of 2011 where vide a ruling of 31. 1.2019 they lost their bid to defend that suit. They therefore filed a memorandum of appeal contemporaneously with an application for stay of the Tigania court’s ruling. The application was filed in this court on 21. 3.2019 and it was given a date for hearing on 8. 4.2019. On 8. 4.2019, the court was told by respondent’s counsel that execution had taken place. The matter was put off to 13. 5.2019 when applicants were expected to be in court and evidence of eviction was to be availed by respondents.
2. On 6. 5.2019, applicants filed another application seeking orders to have the OCS Mikinduri to be directed to visit the suit land and to file a report of the situation on the ground before 13. 5.2019. This application was scheduled for hearing on 13. 5.2019.
3. On 13. 5.2019, the court was informed by applicant’s counsel that the applicants were still on the land. The court directed the executive officer of this court to visit the scene and file a report regarding “who is in occupation of the land”. The court gave directions for the matter to be heard on 8. 7.2019.
4. On 8. 7.2019, it emerged that applicants had been evicted on 10. 5.2019. Counsel for the applicant averred that the scene visit was no longer necessary because eviction took place. She however averred that the court was misled on 8. 4.2019 by the respondents and hence applicants should be reinstated back on the land.
5. Counsel for respondent avers that no formal application has been made to have the applicants reinstated back on the suit land. The counsel for respondent further stated that the court was not misled on 8. 4.2019 and on 13. 5.2019, and that it is applicant’s counsel who misled the court on 13. 5.2019.
6. I have keenly perused the record and I have weighed all the arguments raised herein. The application brought forth by the applicants on 21. 3.2019 was for stay of execution of the lower court’s ruling pending appeal. It is paramount that during the prosecution of such an application, the parties ought to give disclosure on the status quo.
7. On 8. 4.2019, counsel for the respondent addressed the court as follows:
“Execution has taken place and I can avail the warrants” .
8. On 8. 7.2019 counsel for the respondent further stated follows: “It is Miss Gachango who then misled court on 13. 5.2019 by stating that appellants were on the suit land yet they had been evicted 3 days earlier on 10. 5.2019”.
9. True, the counsel for applicant had misled the court on 13. 5.2019 stating that their clients were still on the land yet they had been evicted, while the said counsel was mute on the status quo appertaining as at 8. 4.2019.
10. However the misrepresentation of the true state of affairs by respondents counsel made on 8. 4.2019 had the effect of fundamentally changing the landscape of the dispute.
11. The said counsel for respondent has clearly stated that eviction took place on 10. 5.2019 which means that they misrepresented the true state of affairs on 8. 4.2019 and out of such misrepresentation, the applicants were evicted far much later.
12. In Meru Succession Case no. 720 of 2013 Priscilla Ndubi & another vs Gerishon Gatobu Mbui, Gikonyo J had this to say on matters of disclosure;
“Needless to state that in any Judicial proceedings, parties must make full disclosures to the court of all material facts to the case……..”
13. The respondents distorted the facts regarding the status quo as appertaining to the suit land on 8. 4.2019 and they ought not to be allowed to get away with it.
14. In the circumstances I direct that the parties revert back to the position they held as at 8. 4.2019 which means that applicants should go back to the suit land until the application for STAY is heard and determined.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 18TH DAY OF JULY, 2019
IN THE PRESENCE OF:-
C/A: Kananu
C.P Mbaabu for respondent
HON. LUCY. N. MBUGUA
ELC JUDGE