[2018] KEELC 3289 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC NO 509 OF 2011

KALLLISTE LIMITED....................................PLAINTIFF

-VS-

BAKARI BENDERA & 77 OTHERS........DEFENDANTS

RULING

1. By a Notice of Motion dated 25th November 2015 and brought under Sections 1A, 1B, 3A, 34(1) and 38(f) of the Civil Procedure Rules, the Plaintiff seeks for orders:

1. Spent

2. THAT the Court Bailiff be authorized to demolish all structures standing on Plot No.1984/v/mainland North belonging to the Defendants whose names appear in the schedule in the decree dated 16th April 2013 and to evict any Defendant bound by that decree who may still be in occupation therein.

3. THAT the Officer Commanding Police Division (OCPD) Changamwe do provide security to the Court Bailiff while executing this order.

4. THAT costs of this Application be in the cause.

2. The Application is supported by the affidavit of Alamin Hassan Othman sworn on 25th November 2015 and on the grounds set out in the motion.

3. The Plaintiff avers that it is the registered proprietor of PLOT NO.1984/V/MAINLAND NORTH and that it sought an order of eviction of the Defendants from that Plot and for a permanent injunction to restrain the Defendants from trespassing on the Plot. That pursuant to the filing of the Suit a consent was recorded between the Plaintiff and some of the Defendants whereby the Defendants received full compensation for their structures and/or homes standing on the said Plot and a decree dated 16th April 2013 was issued on 2nd May 2013 wherein the Plaintiff was authorized to demolish any of the Defendants’ structures standing on the said Plot which the Defendants could not remove for fear of their neighbours attack. That the Officer Commanding Police Division (OCPD) Changamwe was further ordered to provide security to the Plaintiff’s agents while removing the structures left behind by the Defendants.

4. It is the Plaintiff’s contention that although the Defendants listed in the schedule were compensated, some of them have failed and/or refused to have their structures demolished and have continued to remain on the property. The Plaintiff further contends that it is in the interest of justice that the decree issued on 2nd May 2013 be effected and the Court Bailiff be authorized to remove the Defendants, evict any of the Defendants remaining thereon and further that the OCPD Changamwe do provide security to the Court Bailiff while removing the structures aforesaid. Annexed to the Affidavit in support of the Application are copies of an authority to swear Affidavit, a copy of Official Search dated 29th July 2011, copy of Consent dated 3rd December 2012 and a copy of the Decree dated 16th April 2013 and issued on 2nd May 2013.

5. The Application is opposed by two Replying Affidavits sworn by Father Gabriel Dolan, the Parish Priest of 60th Defendant and the patron of the 59th Defendant, on 14th December 2015 and 30th November 2017. He deposes that the 5th, 8th, 14th, 17th, 27th and 35th Defendants are represented in Court by the firm of Jengo Associates and that the Plaintiff’s advocates and the firm of Apollo Muinde & Company Advocates had no authority to bind them in consent whatsoever, hence the purported consent between the said parties purporting to bind the aforesaid Defendants is a nullity and void ab initio. That the people listed as Nos. 6th, 18th, 19th, 20th, 21st, 23rd, 24th, 26th, 29th, 30th, 34th, 36th, 37th, 38th, 39th and 40th in the schedule marked annexure AHO-4 in the Plaintiff’s Supporting Affidavit are not parties in this case hence cannot purport to be parties in the consent and decree herein. He states that their advocate, Mr. Jengo informed him that it has never been brought to his attention that the purported consent ever existed and was shocked that a decree has actually been issued in a matter which is pending hearing and was last in Court on 26th October for pre-trial when the Court did not sit.

6. It is the Respondents contention that the orders for eviction sought in the Application should not be given nor the police be used in the eviction process as there are justifiable reasons as to why the consent and decree are not valid. They aver that the decree as drawn is wrong as it alleges that Mr. Muinde is on record for the 1st to 40th Defendants and that the firm of Jengo Associates appears for the 41st-77th Defendants which is not true. That the first order purports that all the people listed in the schedule are the Defendants in this Suit which is not true. It is the Respondents’ contention that as per the records at the register of companies Almin Hassan Othman the deponent of the Plaintiff’s Supporting Affidavit and verifying affidavit sworn on 16th September 2011 Is not a director of the Plaintiff company hence the Suit is incompetent and a nullity ab initio.

7. It is deponed that Bakari Bendera, Joseph Gichuru, Robert Katana, Charles Nkane, Eunice Wakio, Asha James, Agnes Miriti, Philip Endera, Samson Muturi and Loise Nkatha who are Defendants and are sued as being squatters and trespassers on PLOT NO.1984/V/MN were also sued as trespassers in PLOT NO.7 KIBARANI MAINLAND NORTH in HCCC No.226 of 2010 and HCCC No.514 of 2011 where they are said to reside on PLOT NO.724/V/MN in which the Plaintiff was represented by the firm of Joseph Munyithya & Company Advocates while the said Defendants were represented by the firm of Apollo Muinde & Company Advocates. That in HCCC 226 of 2010 a consent similar to the terms set out in paragraph (b) of the Notice of Motion dated 24th May 2012 was recorded and after that evicted everyone who was in the Plot other than only the people who were bound by the decree and that the parties seem to be employing the same antics in this matter. According to the Respondents, most of the people named as Defendants do not reside on the Suit Plot. The Respondents aver that the only way to stem the intended abuse of the judicial process is for not only the Court to hear oral evidence subjected to cross examination but to also visit the Suit Plot and let the people proposed to be removed to be pointed out one by one or an order for their removal be extracted. The Respondents further aver that the Court has no power to grant the order sought in prayer 2 of the Application as there is a Suit pending between the Plaintiff and the 40 Defendants herein and that execution can only be done after the whole Suit has been concluded. They further contend that the Application offends the provisions of Order 22 Rules 17 and 18 of the Civil Procedure as the decree is more than one year old.

8. The Application was canvassed by way of written submissions. The applicants filed submissions on 13th November 2017 while the Defendants filed theirs on 19th January 2018.

9. I have considered the Application, the Affidavits in support and against as well as the submissions filed. The decree issued on 2nd May 2015 was made pursuant to the consent dated 27th November 2012 and filed in Court on 3rd December 2013. The consent was signed by M/s Joseph Munyithya & Company Advocates and the firm of M/s Apollo Muinde & Associates Advocates.

10. The record shows that when the matter came up before Court on 14th December 2012, Mr. Munyithya, counsel for the Plaintiffs and Mr. Muinde, counsel for the Defendants asked the Court to adopt the consent as an order of the Court. However, the Court (Tuiyott, J) noted that the Suit involves 77 Defendants, 34 of whom are represented by M/s Jengo Associates Advocates who were not involved in the consent. The Court directed that M/s Jengo Associates be involved. The record further shows that although M/s Jengo Associates were served with a Mention Notice to attend Court on 16th April 2013, they did not attend and the Court (Mukunya, J) nonetheless adopted the consent dated 27th November 2012 as an order of the Court. Subsequently a decree was issued in terms of that consent order.

11. The decree herein has never been set aside. The present Application seeks orders necessary to execute the decree of the Court. The Application is not opposed by the M/s Apollo Muinde & Associates who were party to the consent. However, the Application is opposed by the Defendants represented by M/s Jengo Associates who never executed the consent and were not present in Court when the consent was adopted as an order of the Court.

12. In the case of Brooke Boud Liebig (T) Limited –V- Maliya (1975) E.A 266,, Law JA, stated at page 269.

“The circumstances in which a consent Judgment may be interfered with were considered by this Court in Hirani –vs- Kassam (1952)19 EACA 131, where the following passage from set on judgments and Orders, 7th Edtion, Vol.1 page 124 was approved.:

Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them….and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the Court….or if consent was given without sufficient material facts, or misapprehension or in ignorance of material facts, or in general for a reason which would enable the Court to set aside an agreement. ”

13. In this case, the Defendants who are opposed to the Application have not applied to set aside the consent judgment. As already stated, the Application is not opposed by the firm of Apollo Muinde & Associates. The Defendants who are opposed to the Application are those who are represented by Jengo Associates who were not party to the consent judgment.

14. The upshot of this is that this Court grants the Application to the extent that it only applies to the Defendants who are represented by the firm of Apollo Muinde & Associates. Considering the circumstances of this case, I order that each party bear their own costs.

Delivered, signed and dated at Mombasa this 21st May, 2018.

__________________

C. YANO

JUDGE