[2017] KEELC 709 (KLR)
The application was dismissed because it was overtaken by events, as judgment had already been delivered before the application was called out. The court further held that even if judgment had not been delivered, the application would have been dismissed for being speculative and for anticipating the outcome of the...
Source-derived case information.
- Citation
- [2017] KEELC 709 (KLR)
- Parties
- Plaintiff: M’Arichia Mwithiga Kirigia; Defendant: Romano Muthengi Nduyo; Defendant: James Muchoki Kathenya; Defendant: Lands Adjudication & Settlement Officer, Tharaka District; Defendant: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 253 of 2017
- Procedural Posture
- Stay Application / Ruling on Application to Stay Proceedings and Reopen Case
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Stay of Proceedings, Reopening of Case, Adjudication Disputes, Cross Examination Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Arichia Mwithiga Kirigia
Plaintiff
Romano Muthengi Nduyo
Defendant
James Muchoki Kathenya
Defendant
Lands Adjudication & Settlement Officer, Tharaka District
Defendant
Attorney General
Defendant
Procedural Posture
Stay Application / Ruling on Application to Stay Proceedings and Reopen Case
Legal Issues
- 1 Whether the court should stay further proceedings and delivery of judgment pending hearing of the application.
- 2 Whether the case should be reopened to allow the 1st and 2nd defendants to cross-examine the plaintiff and adduce evidence.
- 3 Whether the defendants' absence at the hearing justifies granting the orders sought.
Ratio Decidendi
The application was dismissed because it was overtaken by events, as judgment had already been delivered before the application was called out. The court further held that even if judgment had not been delivered, the application would have been dismissed for being speculative and for anticipating the outcome of the court's decision. The defendants' lack of diligence in prosecuting the application and the absence of sufficient cause for their non-participation in the hearing did not justify the orders sought. The court found no merit in the grounds advanced, including the alleged communication breakdown and the issues regarding the land parcels and parties to the suit.
Court Disposition
application dismissed
Orders
- The application dated 18th December 2017 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURTAT CHUKA
CHUKA ELC CASE NO 253 OF 2017
FORMERLY MERU ELC CASE NO 65 OF 2008
M’ARICHIA MWITHIGA KIRIGIA.........................PLAINTIFF
VERSUS
ROMANO MUTHENGI NDUYO.............1ST DEFENDANT
JAMES MUCHOKI KATHENYA...............2ND DEFENDANT
LANDS ADJUDICATION & SETTLEMENT
OFFICER, THARAKA DISTRICT............3RD DEFENDANT
ATTORNEY GENERAL............................4TH DEFENDANT
RULING
1. This application which is dated 18. 12. 2018 says that it is predicated upon sections 1A, B and 63 (e) of the Civil Procedure Act and Order 50 Rule 1 of the Civil Procedure Rules.
2. The application seeks the following orders:
1. That the honourable court be pleased to certify this application of utmost urgency and to hear it ex-parte and on a priority basis in the 1st instance.
2. That the honourable court be pleased to stay further proceedings in this matter and more specifically stay delivery of judgment on 19thDecember, 2017 or on any other later date pending the interpartes hearing and determination of this application.
3. That the honourable court be pleased to reopen the case and grant the 1st and 2nd defendants leave to cross examine the plaintiff and his witnesses and to adduce their own evidence.
3. The application has the following grounds:
1. That the defendants did not participate in the hearing of this matter. The defendants come from Tharaka and there was a communication breakdown between them and their advocates and therefore during the hearing they were absent in court.
2. That the 1st and 2nd defendants have a very strong defence which raises very weighty triable issues. For instance the consent to file the suit is over land parcel Number 1477 situated in Irunduni Adjudication Section yet the plaintiff in his pleadings has introduced numbers 1322 and 1198.
3. Further land parcel number 1477 situated in Irunduni Adjudication Section was not the subject of litigation in either the committee or arbitration board case and the 1st defendant has never been a party to those proceedings.
4. Lastly land parcel number 1322 situated in Irunduni Adjudication Section belongs to KathenyaKathaka who is deceased. The 2nd defendant is wrongly sued in absence of a grant of letters of administration.
4. At the outset, I wish to point out that Order 50 Rule 1 of the Civil Procedure Rules has no relevance to this application. Rule 1 merely explains what is meant by calendar month.
5. The application was brought by way of a certificate of urgency filed in the afternoon of 18th December, 2017. The judgment for which it is sought a stay of delivery was slated for delivery on 19th December, 2017. I do not understand why the defendants’ advocate had to wait until the last minute to file this application. The date for delivery of judgment was fixed on 21st November, 2017, almost one month before this application was filed.
6. The application was called out after I had delivered judgment in this suit. The application is, therefore, overtaken by events. The casual alacrity with which the defendants’ advocate took in his prosecution of this case is veritably demonstrated by the fact that although he had brought the application to court by way of a certificate of urgency, he never turned up to prosecute it.
7. The application is dismissed as judgment has already been delivered.
8. I opine that this application is rather sui generis. I have never come upon an application seeking to stop a court of law from delivering its judgment. Nevertheless, I would have still dismissed the application, even if the apposite judgment had not been delivered, because it is speculative and anticipates the direction a court’s judgment would take.
9. For avoidance of doubt, this application is dismissed.
10. I issue no order as to costs.
Delivered in open court at Chuka this 19th day of December, 2017
in the presence of:
CA: Ndegwa
Romano Muthengi – 1st defendant
P.M. NJOROGE
JUDGE