[2013] KEHC 1068 (KLR)

NO.142

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

E & L CASE NO. 133 OF 2010

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

VERSUS

SAMSON KEGENGO ONGERI…………………………….1ST DEFENDANT

JAMES RAYMOND NJENGA……………….……………… 2ND DEFENDANT

RULING

The plaintiff brought this suit against the defendants on 11th May, 2010 seeking among other reliefs, a declaration that the leasehold title held by the 1st defendant in all that parcel of land known as LR. No. Kisii Municipality Block 3/258 (hereinafter referred to as “the suit property”) 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 suit against the defendants was brought on the grounds that the suit property was part of land that was reserved for a municipal market 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 changed the user thereof from a municipal market to shops, offices and flats. The Plaintiff therefore sought to recover the suit property for public use as a municipal market. The Plaintiff applied for and obtained on 18th May, 2011 a temporary injunction to restrain the 1st defendant from alienating, transferring, charging, leasing, entering and/or in any manner whatsoever dealing with the suit property pending the hearing and determination of this suit.

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 that the allocation of the same to the 1st defendant was illegal and unconstitutional. The 1st defendant has not challenged the said revocation of his title to the suit property.

Following the said revocation of the 1st defendant’s title to the suit property by the District Land Registrar as aforesaid, the Plaintiff moved the court on 21st November, 2012 through an application dated 1st November, 2012 brought under Order 25 rules 5 (1) and (2) and Order 51 rule 1 of the Civil Procedure Rules seeking 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 2nd defendant’s statement of defence and entering judgment against thedefendants as prayed in the plaint;

An order directing the Land Registrar, Kisii District to cancel the Certificate of Lease and entries numbers 1 and 2 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.

This is the application that has come before me for determination. The Plaintiff’s application was supported by the affidavit of Stanley Miriti sworn on 1st November, 2012. The same was brought on the grounds that; the title to the suit property was revoked on 26th November, 2010, the 1st defendant did not challenged the said revocation after failing to file an application for judicial review upon obtaining leave of the court on 24th March, 2011 for that purpose, 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 compromising 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 Plaintiff’s application was served upon both defendants but none of them filed any affidavit or grounds of opposition in response to the same.

When the application came up for hearing on 4th June, 2013, Mr.Oira appeared for the Plaintiff while Mr. Ondari appeared for the 1st defendant. There was no appearance for the 2nd defendant. Mr. Oira in his submission in support of the application reiterated the contents of the affidavit of Stanley Miriti that was filed in support of the application. Mr.Oira submitted that the main prayer sought in the plaint herein is a declaration that the title to the suit property held by the 1st defendant was acquired unlawfully and as such null and void. Counsel submitted that the revocation of the title held by the 1st defendant has compromised this suit and rendered it otiose. Counsel submitted that this suit has been

overtaken by events since the substratum thereof namely the title to the suit property that was held by the 1st defendant is no longer in existence. Counsel submitted further that the decision of the government to revoke the 1st defendant’s title should be adopted by the court as a compromise and/or a settlement between the parties herein and judgment entered accordingly since the Plaintiff’s investigations had revealed that the 1st defendant’s title was acquired fraudulently and as such null and void which was the same conclusion that was arrived at by the Government through the District Land Registrar, Kisii when it revoked the 1st defendant’s title over the suit property. Counsel submitted that in revoking the 1st defendant’s title, the Government acted in the public interest as the decision of the 2nd defendant to lease the suit property to the fist defendant was null and void ab initio and did not require an order of the court to revoke. Counsel submitted that the administrative action of the Government aforesaid negated the basis of this case and since the same was carried out in the public interest, this court which according to counsel has a duty to safeguard public interest should play its part by marking this case as settled and/or compromised.

In view of the seriousness of the orders sought by the Plaintiff and the novel arguments put forward by advocate for the Plaintiff, I allowed Mr. Ondari advocate for the 1st defendant to respond to the application on points of law only to enable me have a balanced view on the issues that have presented themselves for determination in this application. In his reply, the 1st defendant’s advocate submitted that the Plaintiff’s application is frivolous, vexatious and amounts to an abuse of the court process. Counsel submitted that the act of revoking the 1st defendant’s title was an extra-judicial executive act which cannot be brought to bear on judicial proceedings. Counsel submitted that if the court was to adopt the decision of the executive arm of the government as a judgment of this court, the court would have abdicated its constitutional duty as an independent arm of government to the executive. Counsel submitted that this suit is pending hearing and determination before a court of competent jurisdiction. The court should therefore proceed to hear and determine the matter instead of relegating itself to an executive tool by adopting the decision of the executive arm of government as its own judgment. Counsel submitted that the issues raised in this suit are weighty and the same can only be determined in a court of law and not extra-judicially. Counsel submitted that the purported revocation of the 1st defendant title was carried out after the filing of this suit and that the Government should have waited for the determination of this suit before taking any prejudicial action on the status of the title in issue. In conclusion, counsel submitted that if the Plaintiff is of the view that this suit has been overtaken by events then the only option open to it is to have the case marked as withdrawn.

I have considered the Plaintiff’s application together with the affidavit filed in support thereof. I have also considered the submissions by the advocates who appeared for the Plaintiff and the 1st defendant. The following is the view that I take of the matter. 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.

Under this rule, the court is empowered upon receipt of satisfactory proof to that effect, to direct that a suit has been adjusted wholly or in part by a lawful agreement or compromise and, on application of any party, to enter judgment in accordance with the said agreement or compromise.

The place to start when considering the Plaintiff’s application is therefore to ask whether the Plaintiff has discharged the burden of proof to the satisfaction of the court that this suit has been adjusted wholly or partially by a lawful agreement or compromise. The lawful agreement or compromise envisaged under this rule must be that between the parties to the suit. In, Mulla, The Code of Civil Procedure, 18th edition, Reprint 2012, 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 notbe exercised.”

The Plaintiff has not placed before this court any lawful agreement or compromise between the parties to this suit in which they have expressed their desire to settle this suit wholly or in part. What the Plaintiff has put before the court is a Gazette Notice No. 15576 by the District Land Registrar, Kisii (hereinafter referred to as “the notice”) revoking the 1st defendant’s title to the suit property. It is from this notice that the Plaintiff wants this court to infer a compromise and/ a settlement of this suit. The notice aforesaid was published during the pendency of this suit. No reference has been made to this suit in the notice. There is no indication in the said notice that the defendants in this suit 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. Commenting on the agreement or compromise envisaged under the rule, the authors of, Mulla: The Code of CivilProcedure (supra) have sated at page 2917 as follows;

“It is an agreement to put an end to disputes and terminate or avoid further litigation”.

This is not what the notice herein was all about. I must say that the scenario that has been brought before the court by the Plaintiff do not quite fit in under Order 25 rule 5. There is no provision under this rule for dealing with suits which for one reason or the other have been overtaken by events. What I have got loud and clear from the Plaintiff is that following the revocation of the 1st defendant’s title to the suit property by the Government, the substratum of this suit has collapsed and as such to proceed with the same will be in vain or merely an academic exercise. As submitted by the advocate for the 1st defendant, the answer to the Plaintiff’s problem is not found under Order 25 rule 5 but in Order 25 rules (1) and (2). If the Plaintiff is convinced that the major relief that was sought from the court has been received through the executive fiat and it may not be necessary for the court to confirm or put it to test through the judicial process, the only way out is to withdraw this suit. The jurisdiction of the court under Order 25 rule 5 is only limited to adopting compromises and agreements between the parties. The court has no power under that rule or under any other law that I am aware of to adopt an executive decision arrived at through extra-judicial process as its own judgment. As submitted by the 1st defendant’s advocate, to do so would amount to ceding judicial authority to the executive arm of Government. I must say that I have not found the case law cited by the Plaintiff’s advocate helpful. My failure to refer to them in this ruling should not therefore be construed to mean that I have not considered them.

9. Conclusion;

I am not satisfied that this suit has been adjusted wholly or in part through a lawful agreement or compromise between the parties. I am therefore unable to give any direction or order to that effect. In

the absence of such agreement or compromise, I am also unable to enter judgment for the Plaintiff as prayed in the Plaint as there is no basis for such judgment which can only be based on a compromise or agreement between the parties. The upshot of the foregoing is that the Plaintiff’s application dated 1st November, 2012 is not for granting. The same is hereby dismissed. The costs of the application shall be in the cause since the defendants did not formally oppose the application.

Dated, signed and delivered at KISII this 7th day of November, 2013.

S. OKONG’O,

JUDGE.

In the presence of:-

No appearance for the plaintiff

Mr. Sagwe holding brief for Ondari for the 1st defendant

No appearance for 2nd defendant

Mobisa Court Clerk.

S. OKONG’O,

JUDGE.