[2017] KEELC 3195 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO.253 OF 2012

MUHIA MUCHIRI NG’ANG’A....................................PLAINTIFF

VERSUS

JULIUS WAHINYA KANG’ETHE...............1ST DEFENDANT

JULIANA WARIGIA KANG’ETHE..............2ND DEFENDANT

CATHERINE GATHONI KOGI ....................3RD DEFENDANT

MONICAH WAMBUI KANG’ETHE............4TH DEFENDANT

NG’ANG’A KANG’ETHE..............................5TH DEFENDANT

KINYANJUI KANG’ETHE.............................6TH DEFENDANT

RULING

(Application for review; principles to be applied; ex parte judgment having been entered; applicants applying to set aside that judgment; judgment set aside on conditions to be met within 30 days; applicants failing to meet the conditions within the given period; applicants now applying for review 3 and a half months after the ruling; unreasonable delay; application held to have been filed after unreasonable delay; reasonable time would have been within the 30 days given to comply; no error found apparent on the face or record nor sufficient reasons tabled to enable the court review the order; application dismissed)

1. The application before me is that dated 27 February 2017 filed by the 3rd, 4th and 5th defendants in this suit. It is essentially an application seeking an order to vacate, review and/or set aside the orders made on 9 November 2016, and an order that the applicants be allowed to unconditionally defend this case.

2. This suit was commenced in the year 1988 by way of plaint against one Kangethe Wahinya (deceased) over land that was described as Plot No. 214 Nandarasi Settlement Scheme. The plaint was later amended to substitute Kangethe Wahinya for Julius Wahinya Kangethe and Juliana Wahinya Kangethe who became the 1st and 2nd defendants. The case commenced for hearing on 9 July 2015, when it emerged that the land had been subdivided into several other parcels of land with titles issued to persons who were not parties to the suit. The plaint was then further amended to include the applicants and one other person, Kinyanjui Kangethe, as 6th defendant. The record before me indicates that the applicants and the 6th defendant were served with summons but they did not file an appearance. On 20 January 2016 when the matter was slated for further hearing, only the plaintiff appeared and I ordered the matter to proceed since I was convinced that all defendants had been served. The plaintiff closed his evidence and there being no evidence tendered on behalf of the defendants, I closed the hearing of the matter and gave 17 February 2016 for delivery of judgment. The record shows that the defendants were notified of this date but they did not appear. I considered the evidence on record and gave judgment for the plaintiff for possession of the land parcels Nyandarua/Nandarasi/2301, 2302, 2303, 2304, 2305, 2306, 2307, 2308, 2309, 2377 and 2378. I also cancelled the titles of the defendants over these parcels of land.

3. The 1st and 2nd defendants, and the applicants herein, filed separate applications for the setting aside of the ex-parte judgment. I delivered a ruling on these applications on 9 November 2016. In my ruling, I made the finding that the applicants herein had been properly served with summons but they failed to enter appearance. I however set aside the judgment on two conditions. The first condition was that the applicants do give vacant possession of the parcels of land registered in their names to the plaintiff, and the second condition was that they pay thrown away costs of Kshs. 20,000/= each. These conditions were to be met within 30 days and in default, the judgment would stand.

4. It will be observed that it is this ruling which the applicants are now seeking to review and/or set aside. The applicants want that they be allowed to defend the suit unconditionally. It is inter alia averred that there was no proper service of summons upon the applicants and that the resultant judgment was therefore irregularly and fraudulently obtained and should be set aside ex debito justiciae. It is also said that the ruling has an error apparent on the face of record namely :-

(a) that prior to the ex-parte judgment of 17 February 2016, the applicants were not aware of the existence of any suit against them.

(b) That this Honourable Court did not address the issue of the alleged service of summons on the 6th defendant who is deceased.

(c) That the court proceeded to enter judgment against the 6th defendant who is also deceased whereas no substitution was done by the plaintiff.

(d) That the court failed to address the issue of the summons purportedly effected on the applicants and the issues raised with respect to the affidavit of service sworn by Wilson Wanjohi.

(e) That this Honourable Court directed the applicants to vacate their parcels of land whereas the plaintiff's claim was with respect to 12 acres purportedly hived off from his parcel of land Nyandarua/Mkungi/213 whereas no such parcel of land was before the Court.

(f) That this Honourable Court did not address the issue of the draft defence annexed to the applicants' application dated 16 March 2016 (the application to set aside judgment).

5. It is also said that there is sufficient reason to review the orders of 9 November 2016 for the reasons:-

(a) That the substratum of the ruling of 9 November 2016 was to effectively determine the suit against the applicants before they were heard.

(b) That the pith and marrow of the ruling of 9 November 2016 was to issue a decree in favour of the plaintiff against the applicants before they were allowed to defend the suit.

(c) That this Honourable Court did not address sufficiently or otherwise the proposed annexed defence by the applicants.

(d) That the Court failed to grant leave to the applicants to defend the suit thereby leaving the said issue in a state of limbo.

(e) That the applicants have a very strong defence to the plaintiff's suit in :-

(i) That the applicants never trespassed on to the plaintiff's parcel of land.

(ii) That the subsequent subdivision of the parcel of land Nyandarua/Nandarasi/214 into ten plots was lawful, legal and regular having been done in accordance with the law.

(iii) That there exists a public road and/or path between the applicants' parcels of land originally Nyandarua/Nandarasi/214 and the plaintiff's Nyandarua/Mkungi/231.

(iv) That the 3rd defendant/applicant purchased the land parcel Nyandarua/Nandarasi/2302 from the original owner one Kangethe Wahinya Koibita (deceased) and as such is a bona fide purchaser for value without notice of defects.

6. It is further averred that the applicants have been deprived of their right to own property as enshrined in Article 40 of the Constitution; that no prejudice will be occasioned to the plaintiff if the orders sought are granted; that the applicants stand to suffer injustice, hardship and prejudice if the Court declines to allow the application; and that it is in the interest of justice that the orders sought be granted.

7. The application is supported by the affidavits of two of the applicants, namely Catherine Gathoni Kogi and Nganga Kangethe. In her affidavit, Catherine Kogi has inter alia deposed that she purchased the land parcel Nyandarua/Nandarasi/2302 from Kangethe Wahinya Koibita (deceased) in the year 2001; that she was issued with title in the year 2005; that she has since been in quiet possession; that she was informed by the 1st defendant on 5 March 2016 that judgment had been delivered against her cancelling her title; that she instructed the law firm of M/s Chuma Mburu & Co. Advocates who affirmed the position; that the affidavit of service stating that she was served is false; that the 6th defendant could not have been served as he died on 14 June 2007; that there is an error apparent on the face of record and sufficient reason to set aside the judgment; and that the Court failed to grant leave to defend the suit.

8. Nganga Kangethe has more or less repeated the above in his affidavit. He is the registered proprietor of the land parcel Nyandarua/Nandarasi/2377. He has further deposed that he is son to Kangethe Wahinya.

9. The application is opposed by the plaintiff. He has deposed inter alia that the applicants were duly served before the judgment of 17 February 2016; that they then filed the application dated 16 March 2016 to set aside the judgment; that after hearing the application the ruling of 9 November 2016 was made; that the judgment was set aside on conditions; that the applicants did not meet the conditions for setting aside the judgment; that no reason has been adduced as to why the applicants were unable to meet the conditions; that even no effort has been made to pay the thrown away costs; that the applicants have waited for the 30 days given to fulfill the conditions to lapse; that the applicants were given an opportunity to be heard but chose not to exercise it by not fulfilling the conditions; that if the applicants had an issue on the affidavits of service they ought to have applied to cross-examine the process server; that the remedy of the applicants is to file an appeal.

10. I heard the submissions of Mr. Waweru for the applicants and Mr. Waiganjo for the respondent. Also present at the hearing of the application was Ms. Mwachiro for the 1st and 2nd defendants who stated that her clients had chosen to appeal the ruling of 9 November 2017. I take the following view of the matter :-

11. The application before me is said to be brought pursuant to the provisions of Article 40 and 50 of the Constitution; Sections 1A, 1B, 3A and 3B of the Civil Procedure Act, and Order 45 Rule 1 and Order 51 of the Civil Procedure Rules. I guess that Articles 40 and 50 of the Constitution have been cited to buttress the argument that the applicants have a constitutional right to own property and a right to a fair hearing. The other provisions of the law are general in nature, save for Order 45 which provides one with an avenue to apply for review of a judgment or ruling. I take it that the application before me is essentially one for review and I will construe it as such.

12. Order 45 Rule 1 is drawn as follows :-

1. Application for review of decree or order [Order 45, rule 1. ]

(1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.

13. It will be seen from the above that a person is entitled to apply for review instead of proceeding on an appeal if aggrieved by a ruling or judgment. However, such applicant must satisfy the test that is laid in Order 45 Rule 1 (1). Such applicant needs to establish that:-

(i) There is discovery of new and important matter or evidence which was not within his knowledge and could not be produced at the time the decree was made despite exercise of due diligence; or

(ii) There is a mistake or error apparent on the face of the record; or

(iii) There is some other sufficient reason to set aside the order, and

(iv) Such application must be made without unreasonable delay.

14. I opt to start with this last aspect of unreasonable delay. The order sought to be reviewed was made on 9 November 2016. This application for review was filed on 27 February 2017, about three and a half months after the ruling. It will be discerned that in my ruling of 9 November 2016, I did give the applicants 30 days within which to comply with the conditions for the setting aside of the judgment. Indeed, I did make an order that if the applicants fail to satisfy the conditions, then the judgment would stand. The question that arises is whether by waiting for three and a half months, the applicants fail the test of reasonable time.

15. My view is that the applicants are guilty of unreasonable delay. If indeed they were keen in seeking a review, then reasonable time, in the circumstances of the order given, ought to have been the 30 days within which the applicants were to comply with the conditions for setting aside the judgment. They could have come within those 30 days to state why they ought not to be burdened by any conditions before the judgment could be set aside or beseech the court to modify those conditions. They instead waited until those 30 days had lapsed and the judgment affirmed. The result of the delay is that we now have a judgment that is on record, and in my view, the avenue that the applicants ought to have taken was to appeal against the judgment.

16. On the ground of unreasonable delay alone, this application must fail.

17. Nonetheless, just in case I am wrong, I will interrogate the other reasons tabled by the applicant. It has been said that there is an error apparent on the face of record. I have gone through the grounds which support this argument and which I set out earlier in this ruling. The ground that the applicants were not served and not aware of the suit was adequately canvassed in my ruling of 9 November 2016. I held that from the record, there was ample evidence of service upon the applicants. I cannot sit on appeal over that conclusion. On the question that the 6th defendant is deceased, the affidavit of service did state that the 6th defendant was duly served. I have nothing before me from any person who alleges to represent the 6th defendant (if indeed he is dead, for that is doubtful), to say that the 6th defendant is dead and such person is now representing his estate. The applicants herein have no locus standi to try and argue for the 6th defendant. They can only have locus if they demonstrate that they are personal representatives of the 6th defendant. It was also said that I erroneously ordered the applicants to vacate the suit land. To me that cannot be said to be an error on the face of record but can be a ground for appeal. On the issue of the draft defence not having been addressed, I see no place for this argument. The judgment was set aside on conditions. If they applicants had met those conditions then they had leave to defend and could have proceeded to file their defence and thereafter, the case would have proceeded for hearing.

18. I am therefore not persuaded that there was any error on the face of the record.

19. The applicants have also contended that there is sufficient reason to set aside the judgment and they have set out those reasons, which again I displayed in the early stages of this ruling. The issue that no leave was given to defend is also cited but I think I have already addressed it. It is also said that the applicants were condemned unheard yet they have a good defence. My view is that the applicants were given an opportunity to be heard but they failed to take it. They only needed to abide by the conditions given for setting aside the judgment and they would have been heard. They cannot now state that their right to a fair hearing was taken away. It was never taken away. The applicants never came to court within the 30 days given to comply with the conditions, to say that the conditions imposed are impossible for them to undertake. Indeed, no reason has been given in this application as to why the applicants have found it unable to comply with the conditions, even that of payment of thrown away costs. It is said that the right to own property has been taken away from the applicants. Far from it. One cannot be heard to argue that because there is a judgment against him over property, then his/her right to own property has been taken away. The very essence of a property dispute is to determine who should own the subject property. The judgment will, in most cases, be for one and against the other. Does it mean that in passing such judgment the court is violating the constitution by depriving one litigant of property ? If that were the case, then no court ought to hear any property dispute. Surely, that is a most absurd way of reasoning.

20. It has not been alleged in this application that there is any new matter that has been discovered.

21. Whichever way I look at it the applicants fail the test for review.

22. In my opinion, this application has no merit and it is hereby dismissed with costs.

23. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 16TH day of March 2017.

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU

In presence of :-

Ms. Mwachiro holding brief for Mr. Waweru for the applicants, and present for the 1st and 2nd defendants.

Ms. Wangari present for the plaintiff/respondent

Court assistant: Nelima

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU