[2013] KEHC 5907 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL SUIT NO. 244 OF 1998

JOHN MAERA MAERA…….………………………….…………….…….PLAINTIFF

VERSUS

YUVENALIS MAERA NYAKEBAKO………………………......…1ST DEFENDANT

ANDREW ORUKO NYAKEBAKO..……....…….………...……..2ND DEFENDANT

RULING

The Plaintiff brought this suit against the defendants on 4th August, 1998 claiming that the defendants had trespassed on his parcel of land known as LR. No. West Kitutu/ Bogeka/2512 (Plot No. 2512). At the time of instituting the suit, the Plaintiff was acting in person. The defendants filed their statement of defence on 12th August, 1998 denying the Plaintiff’s claim and contending that the parcel of land which they were occupying was LR. No. West Kitutu/ Bogeka/1370 (Plot No. 1370) and not

E&LCC.NO.244 OF 1998

NO.77

LR. No. West Kitutu/Bogeka/2512 as alleged by the Plaintiff. On 15th November, 2000, the Plaintiff appointed the firm of Onyancha Bw’omote & Orora Advocates to act for him in this matter. The defendants who had entered appearance and filed their statement of defence in person continued to appear in person. On 13th December, 2000, the parties entered into a consent referring the dispute herein to the Land Registrar, Kisii who was mandated to visit the two parcels of land namely, Plot No. 2512 and Plot No. 1370 for the purposes of determining their locations on the ground. The said registrar was directed to file his report in court within 60 days after being served with the consent order. The parties agreed to meet the cost of the exercise. The order referring the dispute to the Land Registrar Kisii was made by Justice Wambilyangah (as he then was) in the presence of both parties and Mr. Ogari, advocate who was acting for the Plaintiff. The Land Registrar did not file his

E&LCC.NO.244 OF 1998

NO.77

report in court within the time that was fixed by the court and that time was extended from time to time until 28th April, 2003 when the Land Registrar’s report was ultimately filed in court. On 6th May, 2003, the said report was read to the parties by the judge. On that day, Mr.Ogari appeared for the Plaintiff while the defendants appeared in person. In his report, the Land Registrar, Kisii who visited the two properties in dispute accompanied by the District Surveyor, stated that the Plaintiff’s parcel of land, Plot No. 2512 was separate and distinct on the ground from the defendant’s parcel of land, Plot. No. 1370 with which it shared a boundary. The Land Registrar concluded that the defendant’s activities were restricted to Plot. No. 1370 and that they had not trespassed on or encroached upon Plot No. 2512 owned by the Plaintiff. The said Land Registrar and District Surveyor termed the Plaintiff’s claim herein against the defendant’s as false and unjustified. On 16th June, 2003 the said

E&LCC.NO.244 OF 1998

NO.77

report of the Land Registrar was confirmed and adopted by the court as a judgment of the court. On that day, Mr. Anyona, advocate held brief for Mr. Ogari for the Plaintiff while the defendants appeared in person.

Nothing happened on this matter until 30th November, 2012, that is 9 years later, when the Plaintiff filed a notice to act in person in place of the firm of Onyancha Bw’omote & Orora Advocates. This was followed by the appointment of the firm of Ongegu & Co. Advocates on 1st February, 2013 to act for the Plaintiff. The said firm of advocates thereafter lodged an application dated 22nd February, 2013 seeking an order to set- aside the judgment that was entered by this court on 16th June, 2003. This is the application before me for determination. The Plaintiff’s application has been brought under the provisions of sections 3, 3A and 63 (e) of the Civil Procedure Act, Cap. 21 Laws of Kenya and Order 3 Rules 9A and 21 and Order 9A rule

E&LCC.NO.244 OF 1998

NO.77

10 of the Civil Procedure (Revised) edition and all other enabling provisions of the law. The Plaintiff’s application has been brought on the grounds that he never appointed any advocate to act for him in this matter and that he was not aware of the delivery of judgment. The Plaintiff claims that he has been condemned unheard. The Plaintiff is beseeching the court to set aside the said judgment so that this case may proceed to hearing on merit. The application is opposed by the 2nd defendant. The court was informed during the hearing of the application that the 1st defendant is deceased. In his replying affidavit sworn on 8th March, 2013, the 2nd defendant stated that the Plaintiff’s application has no merit. The 2nd defendant stated further that the Plaintiff should have made the application soon after the delivery of the judgment herein to review or set aside the said judgment if he was not satisfied with the same. The 2nd defendant has deposed further that the

E&LCC.NO.244 OF 1998

NO.77

Plaintiff also had a right of appeal. The 2nd defendant claimed that instead of taking any of these steps, the Plaintiff decided after the said judgment to lodge his claim afresh with Mosocho Land Disputes Tribunal and it is after the court declined on 3rd August, 2012 to adopt the decision of the Tribunal that was made in the Plaintiff’s favour that the Plaintiff decided to re-open this case which was finalized 10 years ago. The 2nd defendant contended that no good reasons have been given by the Plaintiff to warrant the granting of the prayer sought as the Plaintiff was ably represented by counsel when the judgment complained of was made. In conclusion, the 2nd defendant contended that the Plaintiff’s application is incompetent, irregular, time barred and amounts to nothing but an abuse of the due process.

The application was argued before me on 12th March, 2013 when Mr.Mbaka appeared for the Plaintiff while the 2nd

E&LCC.NO.244 OF 1998

NO.77

defendant appeared in person. Mr. Mbaka relied entirely on the affidavit sworn by the Plaintiff in support of the application the contents of which he reiterated in his submissions. The 2nd defendant on his part also adopted the contents of his replying affidavit and urged the court to find that no good grounds exist to warrant the setting aside of the judgment of this court made on 16th June, 2003. I have considered the Plaintiff’s application and the affidavit filed in support thereof. I have also considered the submissions made by the Plaintiff’s advocate. Equally, I have considered the replying affidavit sworn by the 2nd defendant in opposition to the application and the submission that was made by the 2nd defendant in person. I am of the opinion that the Plaintiff’s application has no merit. The judgment sought to be set aside herein was not made by the court after hearing the parties. It was made pursuant to an award that was rendered by the Land Registrar, Kisii to whom

E&LCC.NO.244 OF 1998

NO.77

the parties had referred their dispute for arbitration. The said award and the judgment that flowed therefrom could therefore be challenged only within the parameters set out under Order XLV of the old Civil Procedure Rules which is now incorporated in the more expanded Order 46 of the Civil Procedure Rules, 2010. Since the award and the judgment herein were made prior to the enactment of the Civil Procedure Rules, 2010, the applicable rules were the old Civil Procedure Rules. Under Order XLV rules, 13, 14 and 15, the Plaintiff herein had a right to apply to court to either, modify or correct the award that was made by the Land Registrar if he felt that it had some errors or mistakes or to remit the award back to the Land Registrar if the Plaintiff felt that the Land Registrar had left any issue undetermined or had determined an issue that had not been referred to him for arbitration and finally, he could apply to court to have the award set aside if he had proof that the

E&LCC.NO.244 OF 1998

NO.77

Land Registrar had engaged in misconduct or corruption or that the defendants had concealed some material fact to the Land Registrar as a result of which the Land Registrar was deceived. The Plaintiff did not take any of these steps which were available to him if he had wished to challenge the award of the Land Registrar. In the absence of any challenge to the said award the court proceeded in exercise of the powers conferred under Order XLV Rule 17 of the old Civil Procedure Rules to enter judgment in accordance with the said award. Such judgment is not liable to appeal save in very limited cases. It could however be reviewed under the provisions of Order XLVI of the old Civil Procedure Rules or Order 45 of the Civil Procedure Rules 2010. The Plaintiff’s application herein should therefore have been brought under the provisions of Order 45 of the Civil Procedure Rules, 2010. The Plaintiff has instead moved the court under order IXA rule 10 of the old civil

E&LCC.NO.244 OF 1998

NO.77

procedure rules. The Plaintiff’s application was filed on 22nd February, 2013 and as such ought to have been brought under the provisions of Civil Procedure Rules, 2010 and not under the old civil procedure rules. Even if the application is considered on merit under order IXA rule 10 of the old civil procedure rules which is now, Order 10 rule 11 of the Civil Procedure Rules, 2010, the application cannot succeed. Order XI A rule 10 of the old civil procedure rules which is the same as Order 10 rule 11 of the Civil Procedure Rules, 2010 empowers the court to set aside judgment which has been entered by the court in default of any party entering appearance or filing defence. The judgment sought to be set aside herein was not entered in default of appearance or defence. The court therefore lacks jurisdiction to set aside the same under the provisions of Order 10 rule 11 of the Civil Procedure Rules, 2010. The Plaintiff has also invoked the provisions of sections 3 and 3A of the Civil

E&LCC.NO.244 OF 1998

NO.77

Procure Act, Cap. 21 Laws of Kenya. These provisions are of no assistance to the Plaintiff’s case. The Civil Procedure Rules contains elaborate procedure of dealing with an arbitration award by persons not satisfied with the same. As I have observed above, even after an award has been adopted as a judgment of the court, the Civil Procedure Rules still provides a window for challenging the said judgment under Order 45 of the Civil Procure Rules. In view of the express provisions set out in the rules for invoking the jurisdiction of the court, there is no need at all to resort to the inherent power of the court.

Assuming that the Plaintiff had brought the present application under order 45 of the Civil Procedure Rules, 2010, would it stand any chance? My answer is no. A party moving the court under order 45 of the civil procedure rules to set aside a judgment must satisfy the conditions set out in that order for reviewing a judgment. The court can only review its judgment if

E&LCC.NO.244 OF 1998

NO.77

an applicant who seeks such review satisfies the court that he has discovered some new and important matter or evidence which he could not lay before court when the judgment was given or that there is some mistake or error apparent on the face of record or that some other sufficient reason exist to warrant a review of such judgment. The application must also be brought without unreasonable delay. The Plaintiff claims that he did not instruct any advocate to act for him and that the judgment herein was entered against him without his knowledge. This allegation if proved I believe would amount to sufficient reason to set aside the judgment that was entered herein on 19th June, 2003. This is because if the Plaintiff had not instructed Mr. Ogari advocate to act for him, the said advocate would not have had authority to enter into the consent that referred the dispute herein to arbitration. The court record does not support the Plaintiff’s contention however. The

E&LCC.NO.244 OF 1998

NO.77

Plaintiff filed the suit in person. He however thereafter as I have narrated above, appointed a firm of advocates to act for him. The said firm of advocates acted for the Plaintiff until the Plaintiff filed a notice to act in person in November, 2012. The Plaintiff would not have filed a Notice to act in person if there was no advocate on record. This allegation is not proved and as such cannot be a good ground for setting aside the judgment entered herein. The Plaintiff’s application has also been brought after unreasonable delay. The Plaintiff has sought the setting a side of judgment entered herein after a lapse of over 9 years from the date when the said judgment was made. The Plaintiff has not explained this delay. The delay is therefore inexcusable. It is on record that after judgment was entered herein, the Plaintiff decided to institute fresh proceedings at Mosocho Land Disputes Tribunal over the same subject matter and it is only after the Chief Magistrate’s court declined to adopt the said

E&LCC.NO.244 OF 1998

NO.77

Tribunal’s decision that was in Plaintiff’s favour that he decided to resurrect this suit that was laid to rest 9 years ago. The 2nd defendant’s submission that the Plaintiff’s application is an abuse of the process of the court is not off the mark.

For the reasons given above, I am of the view that the Plaintiff’s application dated 22nd February, 2013 has no merit. The same is hereby dismissed with costs to the 2nd defendant.

Dated, signed and delivered at KISII this 7TH day of JUNE, 2013.

S. OKONG’O,

JUDGE.

In the presence of:-

No appearance for Plaintiff

No appearance for the 1st Defendant

2nd Defendant present in person.

Mobisa Court Clerk.

S. OKONG’O,

JUDGE.

E&LCC.NO.244 OF 1998