[2023] KEELC 18317 (KLR)

Juma & another v Alawi & 2 others (Environment & Land Case 39 of 1996) [2023] KEELC 18317 (KLR) (26 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18317 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 39 of 1996

SM Kibunja, J

June 26, 2023

Between

Juma Pamba Juma

1st Plaintiff

Mishi Pamba Juma

2nd Plaintiff

and

Hamisi Alawi

1st Defendant

Lawrence Charo Karisa

2nd Defendant

Land Registrar

3rd Defendant

Ruling

1. The 1st plaintiff moved the court through the notice of motion dated the 8th November 202 [sic] and filed on the November 9, 2022 through Ms. John Bwire & Associates Advocates, seeking for inter alia that pending the hearing and determination of this suit, the court do vacate, review, discharge, vary and or set aside the orders issued on 28th July 2022, the proceedings thereto, all other consequential orders and in particular the order directing for striking out of the plaintiff’s suit if no cause is shown by the plaintiff. The application is premised on the seventeen (17) grounds on its face marked (a) to (q) and supported by the affidavit sworn by Juma Pamba Juma, the 1st plaintiff, on the “8th day of November 2021”. Lawrence Charo Karisa, the 2nd defendant opposed the application through his replying affidavit sworn on the 23rd November 2022 and filed through Ms. Wameyo Onyango & Associates Advocates. When the application came up for directions on the 14th November 2022, it was not certified urgent and directions on service and filing of replies were given. During the subsequent mention on 8th December 2022, the counsel for the 2nd defendant indicated that he would be cross examining the deponent of the supporting affidavit. The court fixed the matter for cross examination of the said deponent on the February 27, 2023. On that date the counsel for the plaintiffs informed the court that his clients had indicated to him that they intended to instruct another counsel and requested for another date for cross examination of the deponent. He undertook to ensure the deponent of the supporting affidavit comes to court on the next date to be fixed. The learned counsel for the 3rd defendant also indicated that he would be cross examining the deponent of the supporting affidavit. The cross examination was rescheduled to the 23rd March 2023.

2. The matter was called on the 23rd March 2023 during the usual morning virtual session, in the presence of Mr. Wameyo and Makuto, the learned counsel for 2nd and 3rd defendants respectively, and confirmed for cross examination of 1st plaintiff at 11. 00am in open court. The open court session started at about 11. 20am in the presence of both Mr. Wameyo and Odunga, learned counsel for the 2nd defendant and plaintiffs respectively. Mr. Makuto for the 3rd defendant arrived later as Mr. Odunga made his submissions.

3. Mr. Odunga started by informing the court that the wife of Juma Pamba Juma, 1st plaintiff, had gone to his chambers the day before and presented him with a copy of an Ad Litem grant issued in Kilifi EO19 of 2023 on 7th March 2023 and instructions to continue representing him. He was instructed to amend the plaint in this suit, and informed that the 1st plaintiff had a swollen leg and unable to come to court. The counsel submitted that this suit was initiated by Pamba Juma Ismail who was father to Juma Pamba Juma in 1996. That after Pamba Juma Ismail passed on, his widow Mishi Pamba Juma substituted him as the plaintiff until her death on the 6th May 2018. The counsel sought for time to file an application in view of the instructions he has received to have the plaint amended. Counsel also undertook to obtain from his client and present to the court documentary evidence to confirm that he could not come to court due to the swollen leg.

4. Mr. Wameyo submitted that the court had in its ruling of 22nd July 2022 directed the plaintiffs to show cause why this suit should not be dismissed. That there is no amendment to the suit that can take place before the plaintiff’s show cause why process is done with and a decision made. Counsel submitted that after the death of the initial plaintiff, Mishi Panda was substituted as the plaintiff through an application made through Ms. Kitonga advocates. The said Mishi testified before being stood down and one Antony, who had the power of attorney testified as PW2. That before the suit could be heard any further, a judgement in the name of Juma Pamba Juma and others who were never parties in this suit surfaced, as covered in the court’s ruling of July 28, 2022. That the current application with the affidavit whose deponent they sought to cross examine was then filed. That as the deponent of the said affidavit has declined to avail himself for cross examination, the affidavit should be struck out. That the application and the suit be dismissed, and all consequential actions taken on the basis of the fake judgement be declared null and void.

5. Mr. Makuto submitted that the suit became struck out on the 15th day after the plaintiff failed to file an affidavit to show cause in 14 days as directed in the order issued on the July 28, 2022. That the application dated the November 8, 2022 seeking for stay, review and or setting aside of the order of 28th July 2022 has no merit in view of the express orders of 28th July 2022. Counsel submitted that a fake judgement cannot be stayed, and or set aside, but should only be declared null and void. That as the deponent of the affidavit in support of the application dated 8th November 2022 has failed to come to court to answer to his deposition, then the application should be dismissed with costs. That the application by counsel for the plaintiffs for time to file an application to amend the plaint is meant to ensure Juma Pamba Juma does not come to court for cross examination on the contentious affidavit. That as all parties and counsel coming to court have a legal duty to the court, and other parties to ensure that the court remains the temple of justice, this suit should be dismissed with costs.

6. In reply, the counsel for the plaintiffs submitted that if given another date he would ensure the deponent of the affidavit is availed for cross examination. That their application dated November 8, 2022 do not seek to sanctify a fake judgement. That the matter would remain dismissed without being heard if the suit was declared dismissed in accordance with the orders of July 28, 2022. That annexed to the affidavit in support of the application dated the November 8, 2022 is the second affidavit by the same deponent that is in compliance with the order of July 28, 2022. Counsel submitted that as it is not clear how the current plaintiffs became parties in this suit, it is necessary that they be given time to file a formal application to amend the plaint before further orders could be issued. That as the plaintiff had complied with the directions of the July 28, 2022, the suit had been sustained to date, and should not be declared dismissed.

7. That upon counsel completing their submissions, the court reserved its ruling to enable it get time to peruse the record and render a detailed decision. The following are the issues for the court’s determinations;a.Whether the plaintiff complied with the order of the 28th July 2022 to within 14 days, show cause why the court should proceed to entertain her suit, or strike it out.b.What is the impact of the deponent of the affidavit sworn on 8th November 2022 in support of the notice of motion filed on the 9th November 2022 failing to come to court for cross examination on his deposition?c.What orders are just and fair in this suit.

8. The court has carefully considered the oral submissions of the three counsel as summarized above, and upon perusing the record, come to the following findings;a.That it is not disputed, and is indeed apparent that at paragraph 7 of its ruling of the July 28, 2022 the court declared the judgement alleged to have been delivered by Mukunya J, on the 11th February 2014, as “fake and is a forgery………A fake judgement cannot be set aside. It can only be declared null and void and not a judgement of the court. I proceed to declare that what purports to be a judgement of this court purporting that judgement was delivered on 11th February 2014 is fake, null and void. I order that no person should proceed to give effect to that purported judgement. I also order that whatever purports to be a decree emanating from the alleged judgement is not a decree of this court and should not be acted upon by any entity or person.” The court found this suit was still pending and that the purported (fake) judgement could not have made its way to this suit without the involvement of the plaintiff. The court then proceeded to order as follows at paragraph 9 and 10;“9. …I am persuaded to order the plaintiff to show cause, through an affidavit to be filed within 14 days from today, why the court, in light of all the above, should still proceed to entertain her case. If no sufficient cause is shown, I am of the view that it will be in the interests of justice that the suit be struck out, and the plaintiff or any other person claiming under her, or for the estate of the deceased original plaintiff, be forever barred from presenting in court whatever claim they were hoping to present for determination.

10. I further direct the Regional Director of Criminal Investigations (Coast Region) to undertake investigations and proceed to gather evidence and take steps to prosecute all those who may have been involved in one way or another to the fake judgement herein.”From the submissions of counsel for the plaintiff, and paragraph 7 of the supporting affidavit by Juma Pamba Juma sworn on the November 8, 2022, the plaintiff had complied with the show cause order through the affidavit he annexed marked “EX-2”. The said affidavit was sworn on the October 28, 2022 and at the front top left has a date stamp of October 31, 2022, which I take to be the date it was presented to the court. That affidavit was definitely commissioned and filed after more than ninety (90) days had lapsed from the ruling of the 28th July 2022. The order of 28th July 2022 required the show cause to be done through an affidavit to be filed with the court within 14 days. There is no evidence that any application to extend the time to show cause was ever made or obtained before the 14 days lapsed, or any other time thereafter. Indeed, none of the five (5) prayers on the plaintiffs’ notice of motion filed on the 9th November 2022 seeks for extension of time to comply with the show cause order.b.That coming to the plaintiffs’ pending notice of motion filed on the 9th November 2022, it is not disputed that the counsel for the 2nd and 3rd defendants gave notice that they wanted to cross examine the deponent of the supporting affidavit. The court directed that the deponent, Juma Pamba Juma, should come to court for cross examination but failed to attend on the two days fixed. On the first day, his counsel informed the court that the deponent wanted to instruct another advocate to take over the conduct of the plaintiffs’ case from him. He therefore sought for another date and undertook to ensure the deponent would be in court for cross examination. Strangely, though the deponent had reportedly instructed the counsel through his wife to continue representing him in this suit, he did not come to court allegedly because he had a swollen leg. No medical records to confirm that the deponent could not make it to court due to a swollen leg, or any other medical condition was availed to the court. The court can only conclude that the deponent of the supporting affidavit never intended to avail himself in court for cross examination, and the claim that he wanted to change counsel or that he had a swollen leg were all excuses to evade to be cross examined on his affidavit. Where a deponent fail to obey the directions of the court to avail himself/herself to be cross examined on the contents of their affidavits, such depositions are questionable and incapable to be the basis or evidence of the applications filed with them. To ensure the integrity of the court and its processes safeguarded, such an affidavit should be struck out thereby leaving the application exposed by luck of evidence.c.That from the court’s findings in the ruling of 28th July 2022, the initial plaintiff died before testifying in court, and was substituted by Mishi Pamba Juma, who testified on the 10th October 2011 as PW1. Thereafter, one Antony Mwenga testified as PW2. The submission by counsel for the plaintiffs that Mishi Pamba Juma died on the 6th May 2018 as evidenced by the certificate of death number 0827683 has not been disputed or rebutted. The available proceedings show no action or steps to prosecute this suit was ever taken after the death of Mishi Pamba Juma in 2018 until the applications, including that which led to the ruling of 28th July 2022 was filed in May 2021. There is no evidence of Juma Pamba Juma, the 1st plaintiff/applicant having ever applied to substitute the late Mishi Pamba Juma as the plaintiff. Indeed, no application to substitute the said Mishi Pamba Juma as the plaintiff was filed before the expiry of one year from the date of her death, or to extend the time for an application to substitute her has been filed to date. That in terms of Order 24 Rule 3(2) of Civil Procedure Rules, the plaintiff’s suit abated on or about 6th May 2019. d.That further to the finding in (c) above, it is apparent that the application filed on the 9th November 2022 was filed in a suit that abated in 2019 and or a suit that had been struck out after the plaintiff failed to show cause within 14 days from the 28th July 2022. That as shown in (b) above, the plaintiff failed to show cause within the timeline given or at all, and the suit became for all practical purposes struck out after the 14th day from 28th July 2022. e.The orders of the 28th July 2022 on the investigations to be carried out by the Directorate of Criminal Investigations did not require the filing of any prior report with the court. It was for investigations and the taking of steps to prosecute all those who may have been involved in one way or another in the fake judgement.

9. That flowing from the foregoing, the court finds and order as follows;a. That as Mishi Pamba Juma, the plaintiff, died on the 6th May 2018, her suit against the defendants abated on or about 6th May 2019. b. That as the plaintiff or her legal representative has not complied with the show cause order of the 28th July 2022, this suit, in case it had not abated as in (a) above, is hereby stuck out.c. That for avoidance of doubts, the fake judgement alleged to have been delivered by S. N. Mukunya, J, on the 11th February 2014 in favour of Juma Pamba Juma and two others, and or the decree purported to arise therefrom, did not emanate from this court. The said judgement is therefore a nullity, null and void, and incapable of conferring any interests over the suit property, land parcel Kilifi/Roka/308, to anybody or entity.

DATED AND VIRTUALLY DELIVERED THIS 26TH DAY OF JUNE 2023. S. M. KIBUNJA, J.ELC MOMBASA.IN THE PRESENCE OF;PLAINTIFF/APPLICANT: AbsentDEFENDANTS : AbsentCOUNSEL : Mr Odunga for Plaintiff/ApplicantMr Makuto for 3rd Defendant/RespondentWILSON – COURT ASSISTANT.S. M. Kibunja, J.ELC MOMBASA.