[2023] KEELC 16192 (KLR)

Njeru & 3 others v Mbogo & 3 others (Environment & Land Case 585 of 2013) [2023] KEELC 16192 (KLR) (9 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16192 (KLR)

Republic of Kenya

In the Environment and Land Court at Kerugoya

Environment & Land Case 585 of 2013

JM Mutungi, J

March 9, 2023

Between

Mercy Waithira Njeru

1st Plaintiff

Njeru K Geoffrey

2nd Plaintiff

Anne Lydia Nyawira Njeru

3rd Plaintiff

Elzabeth Wandia Njeru

4th Plaintiff

and

Daniel Njeru Njoka Mbogo

1st Defendant

District Land Registrar, Kerugoya

2nd Defendant

Ephantus Muchiri Kagwi

3rd Defendant

James Mutindi Kega

4th Defendant

Ruling

1. Before me for determination is an application dated May 12, 2022 by Peter Kamau Murigu and James Kaburi Gaci (Applicants) expressed to be brought under order 45(I)(a) of the Civil Procedure Rules and article 50(I) of the Constitution. By the Application the Applicants pray for orders:-1. That the Honourable Court be pleased to certify this matter urgent and hear prayer 2 here below exparte in, the first instance due to its urgency.2. That the Honourable Court be pleased to stay execution of the order given on 4/10/2019 pending the hearing and determination of this application interparties.3. That the Honourable Court be pleased to review and set aside the order made on 4th October, 2019. 4.That the costs of this application be provided for.

2. The application was supported on the fourteen grounds set out on the body of the application and the Affidavits sworn in support thereof by Peter Kamau Murigu, the 1st Applicant. The applicants averred they were both bonafide purchasers for value of land parcels LR No. Baragwi/Guama/3512, and 3510 in respect of which they held title deeds and had been in possession since 2014 and had extensively developed the land parcels. The Applicants averred that they were not parties to the instant suit and that the Honourable Court on 4th October, 2019 granted an order whose effect was to cancel the titles they held to LR. No. Baragwe/Guama/3512 and 3510 without affording them an opportunity of being heard contrary to provisions of article 50(1) of the Constitution. The Applicants further aver, that the order has not been implemented and contend that it was in the interest of justice that the said order be reviewed and set aside. The Applicants contend there are sufficient reasons to warrant a review and setting aside of the order.

3. The Plaintiffs/respondents opposed the application on the grounds set out on the Replying Affidavit sworn by the 1st Plaintiff on behalf of the Plaintiffs. The Plaintiffs contended the Applicants were strangers to these proceedings and therefore lacked the locus standi to institute the application when they had not been joined as parties to the suit. The Plaintiffs further averred that the application for review did not satisfy any condition upon which a decree or order may be reviewed under Order 45 of the Civil Procedure Rules. The Plaintiffs averred that the Applicants had not sought to be joined as parties in the proceedings and were without any Locus Standi to make the application in proceedings where they were not parties. The Applicants argued there was no discovery of any new and important matter which was not before the Court when it made the ruling/order sought to be reviewed. The Plaintiffs averred that at the time of making the ruling/order of 4th October, 2019, the Court held the 3rd Defendant had illegally subdivided land parcel Baragwe/Guama/3510, 3511 and 3512 and illegally sold land parcels Baragwe/Guama/3512 and 3510 to the applicants. The Plaintiffs argue that the acts of the 3rd Defendant of unlawfully and illegally subdividing and selling the subdivisions to the Applicants were facts that were within the Court’s knowledge and that the Applicants have no new information likely to alter the Court’s position in regard to the impugned title deeds. The Plaintiffs urged the Court to dismiss the Applicants application.

4. The 1st Defendant also filed a Replying Affidavit in opposition to the Applicants application for review and setting aside of the Court order of 4th October, 2019. The 1st Defendant like the Plaintiffs averred that the Applicants were strangers in these proceedings and therefore lacked the locus standi to bring the application when they were not parties in the suit. The 1st Defendant stated that the 3rd Defendant caused the illegal subdivision of LR. No. Baragwe/Guama/2252 and the Court in its Ruling of 4/10/2019 held the resultant subtitles following the subdivisions were illegally obtained and ordered the cancellation of the same. The 1st Defendant averred that even if the suit was reopened, the Court was not likely to reach a different holding on the issue of validity of the titles.

5. The Applicants in response to the Replying Affidavit filed by the 1st Plaintiff filed a supplementary Affidavit sworn by Peter Kamau Murigu on 10th June 2022. They averred that the Plaintiffs in presenting the application that gave rise to the impugned orders deliberately concealed, from the Court that the Applicants were not parties to the suit and stood to be adversely affected by the cancellation of the titles that they held. The Applicants further averred they were not aware of the Court orders made on 4th October, 2019 and on 15th May 2013 and neither were they party to the consent entered into on 28th August, 2013. The Applicants contended they were condemned without being accorded an opportunity of being heard and consequently their rights protected under the Constitution were infringed.

6. The application was canvassed by way of written submissions. The Applicants filed their written submissions on 26th September, 2022 while the Plaintiffs filed their submissions on 3rd October, 2022. I have reviewed the application by the Applicants together with the Supporting Affidavits and the Replying Affidavits in opposition and I have considered the filed written submissions. The emergent issues for determination are as follows:-i.Whether the Applicants had the locus standi to file the application when they were not parties in the suit?ii.Whether the Applicants had satisfied any of the conditions upon which review maybe granted?

7. That the Applicants were not parties to the proceedings at the time the orders issued on 4th October, 2019 were made is not disputed. The relevant order as per the extracted orders arising from the Notice of Motion dated 7th November, 2016 was Order (3) which was as follows:-“3. The consent dated 28th August, 2013 entered between the Defendant/1st Contemnor and the 3rd Contemnor emanating from CMCC No. 222 of 2013 and registered as entry number 5 against both titles deeds numbers Baragwe/Guama/2250 and Baragwe/Guama/2252 and all consequential orders and entries made on the two title be and are hereby vacated and/or set aside.”

8. It is evident from the copies of the abstracts of title annexed to the Supporting Affidavits of the Applicants that land parcels Baragwe/Guama/3512 and 3510 were registered in their respective names on 13/11/2014 and title deeds issued in their names on 21/11/2014. The two parcels of land were subdivisions from land parcel Baragwe/Guama/2252 and were registered in the name of the 3rd Defendant on 5/11/2014 when the respective registers for the two parcels of land were opened. On the basis of the foregoing it is evident as at the time the Notice of Motion dated 7th November, 2016 which gave rise to the impugned orders was made, the Applicants had already acquired titles to land parcels Baragwe/Guama/3512 and 3510.

9. The Applicants have submitted that under section 80 of the Civil Procedure Act and order 45(1) of the Civil Procedure Rulesthey need not to have been parties to the suit to make the application for review of an order which affects and has aggrieved them as the provisions allow any person aggrieved by an order to apply for review. Section 80 of the Civil Procedure Act provides as follows:-“80. Any person who considers himself aggrieved –(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”Order 45(1) of the Civil Procedure Rules provides as follows:“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.”

10. The Applicants in support of their submissions that any person could apply for a review of an order provided they were affected and aggrieved by the order/decree relied on the Case of Ngororo –vs- Ndutha & Another(1994) eKLR where the Court of Appeal in interpreting section 80 of the Civil Procedure Act held that it applied even to persons who were not parties to the suit. The Judges stated thus:-“…….. However, we would observe that under Section 80 of the Civil Procedure Code, as we shall point out herein later, any person, though not a party to a suit, whose direct interest is being affected by the Judgment therein is entitled to apply for review. The 2nd Respondent therefore has a locus standi.”

11. The Court of Appeal Judges further in the same case stated thus:-“The words “any person” and “for any sufficient reason” used in Section 80 of the Civil Procedure Act clearly meant to include a person who has a direct interest in a litigation or its result but has been deprived of a hearing as a party in relation to his interest.”

12. The Applicants further relied on the Case of James Mwangi Gerald –vs- Antony Warui & Others (2021) eKLR where Cherono, J in allowing an application for review held that the Applicants needed not to have been a party in the suit. He stated as follows after making reference to section 26(1) of the Land Registration Act 2012:-“The Law is so protective of a certificate of title issued by the Registrar pursuant to a transfer or transmission and it gives only two ways in which the title issued can be cancelled. The manner in which the title issued to the Applicant was cancelled on 30th September, 2011 is therefore unprocedural and the order is in my view liable to be reviewed and/or set aside which I hereby do. Suffice to state that the Applicant need not make a formal application to be enjoined as a party before seeking the orders. In any event, the orders issued on 30th September, 2011 cancelling his title deeds did not require that he be enjoined as a party first before issuing the orders. In any case, this Court has powers to make an order enjoining a party to suit suo moto”.

13. The Plaintiffs for their part submitted that the Applicants lacked the locus standi to make the instant application as they were not parties in the suit and had not applied to be joined as parties. The Plaintiff insisted that it was only after they had become parties through an order of the Court that they could make such an application as they had made. In support of this submission the Plaintiffs placed reliance on the Case ofSammy M. Makore, Commissioner of Insurance & Another –vs- Kiragu Holdings Ltd (2013) eKLR where Mabeya, J took the view that “it is only after a party has been joined in a proceeding that it can purport to participate and seek relief in such a proceeding.” The Plaintiffs further placed reliance on the Case of Abdul Waheed Sheikh & Abdu Hameed Sheikh as Trustees of Sheikh Fazal Ilahi Noordin Charitable Trust –vs- Commissioner of Lands & 5 Others (2018)eKLR where Mativo, J (as he then was) appeared to take the same position as Mabeya, J(Supra) that for a person to be entertained in an application for review under order 45(1) of the Civil Procedure Rules 2010 and section 80 of the Act such a person needed to be a party or to have joined as a party in the proceedings. What is clear however, Mativo, J lamented that the Applicants Counsel had cited no authority that could have assisted in reaching a determination on the question whereupon he went ahead to consider plausible interpretation of the words “Any person considering himself aggrieved” – within the context of section 80 of the Act and order 45 rule 1 of the Civil Procedure Rules. He concluded a stranger would not avail himself of the remedied provided under section 80 of the Act and order 45 rule 1 of the Civil Procedure Rules, I do not know whether the Learned Judges positions would have been different if the Case of Ngororo –vs- Ndutha & Another (supra) had been cited to them.

14. In the instant matter the orders that were granted on 4/10/2019 do not appear explicit. The order, number 3 referred to earlier, ordered Entry No. 5 against the two properties Baragwe/Guama/2250 and 2252 and all consequential orders and entries made on the two titles to be vacated or set aside. Entry No. 5 related to lifting of some restrictions on the titles. Thereafter land parcel Baragwe/Guama/2252 was registered in the name of 3rd Defendant (entry 6) and was subsequently sub-divided and subtitles Baragwe/Guama/3512 and 3510 sold and transferred to the Applicants respectively. The Applicants held titles as at the time the application dated 7/11/2016 was filed and the order made on 4/10/2019. Why did the Plaintiffs not apply to have the Applicants joined to the proceedings?

15. The Applicants have stated that they did not know about the pendency of the suit and only became aware of the prohibitory orders registered against their titles on 17th July, 2018 when they obtained abstracts of title (green cards) on 12th April, 2022 and noted the prohibitory order issued in the instant case had been registered as entry No. 4 against each of their titles. That it was after their Advocates perused the Court file that they discovered that the Court had on 4th October, 2019 issued an order that effectively cancelled their titles. The Applicants claim they were neither given Notice of the Registration of the Prohibitory Order and/or of the Court Order of 4th October, 2019 even though the order adversely affected their interests. The Applicants obtained title to their parcels of land in 2014 took possession and occupation and commenced development of the respective parcels of land and have effected developments as illustrated in the photographs annexed to their respective supporting Affidavits.

16. I have carefully evaluated the evidence and the facts from the material placed before the Court and I find no evidence to suggest the applicants were indeed aware of the instant suit and the adverse orders made by the Court affecting their respective parcels of land before they acquired Green Cards on 12th April, 2022. The Plaintiffs have not proffered any evidence to demonstrate that indeed the Applicants had any knowledge of the suit and/or the adverse orders that had been made affecting the Applicants interest in land parcels Baragwe/Guama/3512 and 3510.

17. The Applicants in my view were persons who were directly and adversely affected by the orders made by the Court on 4th October, 2019 whose effect was to nullify and cancel their land titles over land parcels Baragwe/Guama/3512 and 3510 respectively. The Applicants had upon being registered as proprietors of the land parcels been vested with absolute ownership rights over the parcels as envisaged under Sections 24,25 and 26 of the Land Registration Act, 2012. The Applicants having been vested with the rights of ownership conferred by virtue of registration and having been issued title to the land, such title could only be challenged on the limited grounds provided under section 26(1)(a) &(b) of the Land Registration Act, 2012. Section 26 (1) of the Act provides:-“(1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”In my view the title of a registered proprietor of land could only be annulled and/or cancelled after due process is followed and the proprietor afforded an opportunity of being heard. It is a cardinal rule of natural justice that a person ought not to be condemned without being given a chance of being heard. Articles 47(1) &(2) and 50(1) of the Constitution echo this basic principle. The Applicants without doubt required to be heard before their titles could be cancelled for any reason. It matters not that even after being heard, the titles could end up being cancelled for whatever reason. The applicants were entitled to be heard before an order cancelling their titles could be made.

18. As it is clearly evident that the Applicants were aggrieved by the order made by the Court on 4th October, 2019 as it adversely affected the rights of ownership of land parcels Baragwe/Guama/3512 and 3510, I revert to the issue whether or not the Applicants had the locus standi to bring the instant application.

19. As observed earlier in this ruling both Section 80 of the Civil Procedure Act which donates the power to review and order 45(1) of the Civil Procedure Rules which prescribes the conditions that could warrant a review used the words “Any person ……” aggrieved may apply for review. The choice of the words in my view was intended by the drafters to widen the scope of persons who could apply for review of an order or decree that has aggrieved them. I suppose there was consideration that an order or decree could aggrieve not only persons who were parties but also non-parties to the suit. If the drafters intended that review could only be sought by a person who was party to the suit, nothing would have been easier, than to expressly state so by simply perharps stating “Any party to the suit considering himself aggrieved.” They did not limit themselves and that in my view, gave a window for a non-party aggrieved by the order/decree to seek a review of the order. I therefore agree with the interpretation given to Section 80 of the Act by the Court of Appeal in the Case of Ngororo –vs- Ndutha & Another(1994) eKLR which at any rate binds me. In the instant case, the Applicants were not parties to the suit, were not heard, and an adverse order cancelling their titles was made.

20. They were clearly adversely affected by the order and were aggrieved by the order. I am satisfied they were “any person” and the words “or for any other sufficient reason”, used in order 45(1) (b) of the Civil Procedure Rules would allow them to approach the Court for review without being parties to the suit.

21. However, for tidiness, the Applicants could have in the same application applied to be joined as parties since, if their application for review were successful, they would have needed to participate in the suit. Nonetheless, I do not consider the omission to apply for joinder is fatal as the Court under order 1 rule 10 (2) has power to order the joinder of any party to the proceedings if it deemed the presence of such party was necessary in order to effectually and completely adjudicate upon and settle all questions involved in the suit. As I have found and I am satisfied the Applicants had locus standi to bring the application and there are sufficient reasons to have the Court Order No. 3 given on 4/10/2019 effectively cancelling the Applicants titles reviewed, the order is hereby ordered reviewed and is set aside. The Court further under the provisions of order 1 rule 10(2) of the Civil Procedure Rules orders the 1st and 2nd Applicants to be joined to the proceedings as the 5th and 6th Defendants respectively.

22. The Plaintiffs are granted 21 days leave to amend the Plaint to join all the Defendants including the now added 5th and 6th Defendants. The Defendants upon service of the amended Plaint upon themselves shall have liberty to amend their defences and/or file their defence (as the case maybe) within 21 days of being served. Mention on 31st May, 2023 to confirm compliance and for further directions.

23. Each party to bear their own costs of the application.

RULING DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 9TH DAY OF MARCH, 2023. JOHN M. MUTUNGIE.L.C - JUDGE