[2021] KEELC 4619 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

JR. NO. 100 OF 2010

MURIUKI BAIBAYA..........................................................................................1ST APPLICANT

MAILUTHA NKUBITU.....................................................................................2ND APPLICANT

MUTHEE M’KIRERA.......................................................................................3RD APPLICANT

M’IMANYARA BAIMUNYA ...........................................................................4TH APPLICANT

JOYCE NKIROTE KUBAI................................................................................5TH APPLICANT

ON BEHALF THEMSELVES & 105 OTHERS

VERSUS

THE CLERK, COUNTY COUNCIL OF NYAMBENE.................................1ST RESPONDENT

DISTRICT LAND ADJ. OFFICER, TIGANIA EAST.................................2ND RESPONDENT

TIGANIA EAST LAND REGISTRAR, MINISTRY OF LAND..................3RD RESPONDENT

DIRECTOR PHYSICAL PLANNING, TIGANIA EAST.............................4TH RESPONDENT

DISTRICT COMMISSIONER, TIGANIA EAST.........................................5TH RESPONDENT

HON. ATTORNEY GENERAL.......................................................................6TH RESPONDENT

RULING

1. Before me is an application filed on 16. 7.2019 by the firm of Gitobu Imanyara & Co. advocates seeking orders for the reinstatement of the suit. The suit had been withdrawn by consent on 29. 4.2019. The grounds in support of the application are that the firm of Gitobu Imanyara is the one on record for the applicants and not the firm of M.G Kaume advocates. It is averred that the firm of M.G Kaume & Co did not serve the firm of Gitobu Imanyara & Co. with a notice of change of advocate. It is further averred that the applicants have come to learn that the suit was withdrawn against their wishes.

2. In their submissions the applicants desire to be accorded an opportunity to have their day in court. They have relied on the following cases:

- Wachira Karani vs Bildad Wachira Richard (2016) eKLR,

- RichardNcharpi Leiyangu vs Independent electoral and Boundaries Commission & 2 others (2013) eKLR,

- CMC Holdings Ltd vs JamesMumo Nzioki (2004)eKLR.

3. The 1st and 2nd respondents (the respective Governor and the Government of Meru County) have opposed the application vide the replying affidavit of one Irah Nkuubi dated 6. 12. 2019. They contend that the firm of M.G Kaume came on record vide the notice of change of advocate dated 3. 5.2018 which was filed simultaneously with an application dated 2. 5.2018. In support of the said application, one Muriuki Baibaya (1st applicant herein) also swore an affidavit.

4. It is further contended that the supporting affidavit of R.K Ruthugua is ambiguous and is improperly on record as there is no documentary evidence to support the averments set out therein. The court has been urged to dismiss the application.

5. The 3rd – 6th respondents opposed the application vide their grounds of opposition filed in court on 28. 11. 2019 where they contend that M/S. Kaume advocate have not only been the ones who have been representing the applicants in court on numerous occasions, but that the said firm also filed a notice of appointment dated 2. 5.2018.

6. It is also contended that the firm of Gitobu Imanyara have never appeared in court since year 2013. It is averred that the withdrawal of the suit by consent was well within the doctrine of consent and it is only the said parties who can move the court to set aside the said consent.

7. I have considered all the arguments raised herein. The law concerning the status of consent orders was restated in the case of E.T. v Attorney General & another [2012] eKLR, where the court made reference to the case of Flora N. Wasike v Destimo Wamboko[1988] eKLR, where it was stated thus;

“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside.

8. The proceedings of 29. 4.2019 indicate that the matter was withdrawn upon the request made by Mr. Kaume, advocate for the applicants, and there was no opposition from the advocates for the respondents. It is only the issue of costs which was left pending.

9. As pointed out in the affidavit of Irah Nkuubi in paragraph 4 thereof, the firm of M.G Kaume did file a notice of change of advocates dated 2. 5.2018. The same was to be served upon the firm of Gitobu Imanyara at their postal address no. 53234 – 00200. Mr. Ruthugua who contends that the firm of Gitobu Imanyara was not served has not clarified as to whether this is still their postal address or not.

10. Secondly, I note that the suit was filed in a representative capacity, whereby the five applicants represent many other (over 105) persons. In paragraph 2 of his supporting affidavit, Mr. Ruthugua states as follows:

“I came to learn that some applicants approached the firm of M.G Kaume & Co. advocates for representation and which applicants did not have the consent of the majority of the members”.

11. This averment is certainly ambiguous as pointed out in the affidavit of Irah Nkuubi. There is no clarity as to who amongst the applicants approached the firm of M.G.Kaume for representation. Likewise, the identity of the “Majority of the people” being referred to in the averments made by Mr. Ruthugua have not been revealed. It is not enough to make generalized remarks, hence this court is unable to discern who the dissatisfied applicants are.

12. Thirdly, it is quite apparent that the firm of M/S Kaume advocates have been involved in this matter right from the beginning even though during those early stages, the said firm was holding brief for the firm of M/S. Gitobu Imanyara advocates, -See proceedings of 19. 10. 2011, 23. 11. 11.

13. The firm of Ms. Kaume advocates did file a notice of change of advocates along with an application to enjoin the 1st and 2nd respondents in place of the clerk of Nyambene county council. The person who swore the supporting affidavit in the aforementioned application dated 2. 5.2018 is the 1st applicant, one Muriuki Baibaya in his capacity as one of the applicants. Two years down the line, the capacity of that 1st applicant to deal with the firm of M/S. Kaume advocates has not been challenged.

14. Fourthly, in exercise of its discretion on whether to set aside the consent order of 29. 4.2019, this court has to take into consideration as to whether the applicants have established sufficient cause. As rightly stated in the case of Wachira Karani vs Bildad Wachira (Supra) cited by the applicants;

“The test to be applied is whether the defendants honestly and sincerely intended to remain present when the suit was called for hearing…..”.

15. The prosecution of this case by the firm of Ms. Gitobu Imanyara advocates paints a grim picture. The said firm has been missing in action. This is a Judicial review suit, and such suits are generally disposed off by way of written submissions. However, nothing much appears to have ripened in the disposal of the substantive notice of motion filed eleven (11) or so years ago in year 2011! In one instance, a ruling was delivered on 24. 7.2014 and there after, the matter stayed in limbo for the next 3 years until 22. 6.2017 when the court on its own motion retrieved the matter for action.

16. In the case of Lawrence Kinyua Mwai vs. Nyariginu farmers Co. Ltd. & Another (2019) eKLR, this court laid great emphasize on the duty of the court to facilitate the just expeditious determination of proceedings in the following words;

“One of the cardinal principles in our constitution is “the expeditious delivery of justice” –see Article 159 (2) (b) of the Constitution of Kenya, which in effect codifies the 17th century maxim “Justice delayed is justice denied”. This means that if justice is not provided in a timely manner to the parties, it loses its importance and it violates the human rights of the litigants and their families. That is precisely why rights to speedy trials are incorporated in law worldwide. The people of Kenya have for decades cried out to the justice system to embrace the aforementioned principle of expeditious delivery of justice, and in response thereof, the Judiciary formulated its blue print “Sustaining Judiciary Transformation - (SJT 2017 - 2021)” where speedy delivery of justice was one of the key strategic area of concern. Under that key area, Judiciary embarked on an exercise of clearing old cases which had clogged the justice system for many years. The matters identified as falling under this category were cases which were five years old and/or older by the year 2017 - 2018. The Meru ELC court was one of the hardest hit stations with a huge back log of old cases. Against this background, the station undertook the exercise of clearing the backlog very seriously where service weeks were conducted by visiting Judges throughout the year 2018”.

17. Just like the Lawrence Mwai case (supra), this matter fell in the category of back log cases and was therefore listed before a visiting Judge Mwangi Njoroge on 22. 6.2017 for hearing. The hearing however did not take off. Thereafter, nothing much happened geared towards the prosecution of the suit. Against this background, I find that there is certainly no guarantee that the applicants intend to remain present with their advocate “Gitobu Imanyara” if this suit was to be reinstated.

18. Finally, this court has considered the circumstances under which the suit was withdrawn on 29. 4.2019. Mr. Kaume had addressed the court as follows: “Adjudication is complete hence the suit is no longer necessary. I pray that the matter be withdrawn”. The response from Mr. Kiety for the 2nd to 6th respondents was as follows: “I am aware that adjudication is complete. I leave it to court on issue of costs”.

19. In the Supreme Court of Kenya case of Geoffrey M. Asanyo & 3 others v Attorney-General [2020] eKLR, the court stated that;

“Adoption of a consent by a Court is a process, in the course of which a Court discharges the duty ofevaluating the clarity of the consent placed before it by parties, and giving directions on the manner of adoption”.

20. In the present matter, it is apparent that the case was withdrawn on the basis that Adjudication is complete. The applicants have made no comments on this issue. I am aware that this case was mentioned in paragraph 222 in Merupetition 7 of 2017(The CountyGovernment of Meru & another v District Land Adjudication and Settlement Officer Tigania East Sub-County & 18 others [2018] eKLR), where I delivered a judgment on 1. 2.2018. At the heart of that petition was the issue of adjudication which this court allowed to proceed hence the averments made by counsels on 29. 4.209 were plausible. It therefore appears that the issues raised in the substantive motion in this suit have been overtaken by the events as adjudication has apparently taken place.

21. All in all, I find that the application dated 11. 7.2019 is not merited and the same is hereby dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT MERU THIS 27TH DAY OF JANUARY, 2021

HON. LUCY. N. MBUGUA

ELC JUDGE

ORDER

The date of delivery of this Ruling was given to the advocates for the parties through a virtual session via Microsoft teams on 19. 10. 2020. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.

HON. LUCY N. MBUGUA

ELC JUDGE