[2013] KEHC 1071 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

E & L CASE NO. 122 OF 2008

KENYA ANTI-CORRUPTION COMMISSION………......………. PLAINTIFF

VERSUS

ESTHER NYABATE NGARE………………………......…..1ST DEFENDANT

SAMMY SILAS KOMEN MWAITA……….……………...2ND DEFENDANT

RULING

This suit was filed by the Plaintiff against the 1st defendant on 24th September, 2008. The Plaint was subsequently amended on 7th December, 2010 to join the 2nd defendant into the suit. In the mended Plaint dated 7th December, 2010, Plaintiff sought among other reliefs, a declaration that the leasehold title held by the 1st defendant with respect to all that parcel of land known as LR. No. Kisii Municipality Block 3/430 (hereinafter referred to as “the suit property”) was acquired fraudulently and as such the same is illegal null and void, an order for the rectification of register of the suit property by the cancellation of the registration of the 1st defendant as the proprietor of the leasehold interest in the suit property and all subsequent entries in the register related thereto, an order of vacant possession of the suit property and an order of permanent injunction to restrain the 1st defendant from alienating, charging, leasing, entering or in any manner howsoever described dealing with the suit property. The Plaintiff’s claim against the defendants was brought on the grounds that the suit property was part of land that was reserved for Community Development Centre within Kisii town and that the same was fraudulently and in breach of the law leased by the 2nd defendant to the 1st defendant after the 2nd defendant had unlawfully changed the user thereof. The Plaintiff therefore sought to recover the suit property for public use as was initially intended.

While this suit was pending hearing and determination, the District Land Registrar, Kisii through Gazette Notice No. 15576 published on 26th November, 2010 revoked the 1st defendant’s title over the suit property on the ground that the suit property was reserved for public purpose and as such its allocation to the 1st defendant was illegal and unconstitutional. There is no indication on record that the 1st defendant challenged the said revocation.

It is the said revocation of the title of the suit property that has given rise to the application before me. Following the said revocation, the Plaintiff filed the application herein on 21st November, 2012 by way of Notice of Motion dated 30th April, 2012. The application was brought under Order 25 rules 5 (1) and (2) and Order 51, rule 1 of the Civil Procedure Rules. The Plaintiff sought the following orders;

An order that this suit has been compromised and/or overtaken by events consequent to the revocation of the title of the suit property through Gazette Notice No.15577 of 26th November, 2010;

An order striking out the 1st defendant’s statement of defence and entering judgment against the defendants as prayed in the plaint;

An order directing the Land Registrar, Kisii District to cancel the Certificate of Lease and entries numbers 2 and 3 in the land register relating to the suit property;

An order that each party should bear its own costs of this application and of the entire suit.

The Plaintiff’s application was supported by the affidavit of Yuvinalis Angima sworn on 17th May, 2012. The application was brought on the grounds that; the title to the suit property was revoked on 26th November, 2010 by the District Land Registrar, Kisii, the 1st defendant did not challenge the said revocation, the revocation of the title to the suit property has compromised the principal reliefs that were sought by the Plaintiff in this suit and that it would only be fair and just if the compromise of this suit through the revocation of the title of the suit property by District Land Registrar aforesaid is adopted by the court and judgment entered accordingly for the Plaintiff against the defendants as prayed in the plaint save for costs which should be borne by each party. The application was opposed by the 1st defendant. In her grounds of opposition dated 12th March, 2013, the 1st defendant contended that the Government did not have the power to revoke the 1st defendant’s title to the suit property without following the due process and as such the purported revocation was null and void.

On 13th March, 2013, the parties agreed to argue the application by way of written submissions. The Plaintiff filed its submissions on 4th April, 2013 while the 1st defendant filed her submissions on 19th April, 2013. I have considered the Plaintiff’s application together with the affidavit filed in support thereof. I have also considered the 1st defendant’s grounds of opposition to the application and the written submissions filed by the advocates for the Plaintiff and the 1st defendant. The Plaintiff’s application was brought under Order 25 rule 5 (1) and (2) of the Civil Procedure Rules 2010 which provides as follows;

5. (1) Where it is proved to the satisfaction of the court, and the court after hearing the parties directs, that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall on the application of any party, order that such agreement, compromise or satisfaction be recorded and enter judgment in accordance therewith.

(2) The Court, on the application of any party, may make any further order necessary for the implementation and execution of the terms of the decree.

The court has power under this rule to direct that a suit has been adjusted wholly or in part by a lawful agreement or compromise upon receipt of satisfactory proof to that effect, and, to enter judgment, on application of any party in accordance with the said agreement or compromise. The lawful agreement or compromise envisaged under this rule must be that between the parties to the suit. See, Mulla, The Code of Civil Procedure, 18th edition, Reprint 2012, where the authors while commenting on Order 23 rule 3 of the Indian Code of Civil Procedure which is similar to our Order 25 rule 5 save for minor variations stated as follows at page 2916;

“Unless it is clearly established that such accord or compromise has been entered into between the parties, the powers under Order 23 rule 3 could not be exercised.”

The Plaintiff has not placed before this court any lawful agreement or compromise between the parties herein in which they have expressed their desire to settle this suit wholly or in part. What has been presented to court is the Gazette Notice No. 15576 by the District Land Registrar, Kisii (hereinafter referred to as “the notice”) that revoked the 1st defendant’s title to the suit property. This notice cannot be by any imagination be construed as an agreement or a compromise between the parties herein. Although the notice was published after the filing of this suit, no reference has been made to this suit in the same and there is no indication therein that the defendants herein were consulted before the decision to revoke the title to the suit property was arrived at. This notice does not have the elements of a lawful agreement or compromise envisaged under Order 25 rule 5 (1) and there is no basis upon which this court can infer such agreement. The Plaintiff’s contention is that following the revocation of the 1st defendant’s title to the suit property by the land registrar as aforesaid, the substratum of this suit collapsed and as such to proceed with the same will be an act in vain. In my view the answer to the Plaintiff’s problem is found in Order 25 rules (1) and (2) of the Civil Procedure Rules and not under Order 25 rule 5. If the Plaintiff feels that the reliefs sought in this suit are no longer tenable due to intervening events subsequent to the filing of the suit, the only avenue open to the Plaintiff to lay this suit to rest is to have it withdrawn. The jurisdiction of the court under Order 25 rule 5 is limited to adopting compromises and agreements between the parties. The court has no power under the rule to adopt a decision arrived at by the executive arm of the Government through extra-judicial process as its own judgment. To do so in my view would be equivalent to abdicating judicial authority of the court. As submitted by the 1st defendant’s advocates, the legality of the revocation of the 1st defendant’s title is doubtful. In the circumstances, for this court to endorse the same unquestionably without testing the validity thereof through the normal court process of adjudicating disputes brought before it would in my view occasion a miscarriage of justice to the defendants.

6. Conclusion;

The upshot of the foregoing is that the Plaintiff’s application dated 30th April, 2012 is not for granting. The same is hereby dismissed with costs to the 1st defendant.

Dated, signed and delivered at KISII this 8th day of November, 2013.

S. OKONG’O,

JUDGE.

In the presence of:-

No appearance for the plaintiff

No appearance for the 1st defendant

No appearance for 2nd defendant

Mobisa Court Clerk.

S. OKONG’O,

JUDGE.