[2023] KEELC 18722 (KLR)

Njoroge v Kerongo & 7 others (Environment & Land Case 10 of 2019) [2023] KEELC 18722 (KLR) (5 July 2023) (Ruling)

Neutral citation: [2023] KEELC 18722 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 10 of 2019

A Nyukuri, J

July 5, 2023

(Formerly ELC No. 59 of 2016 Nairobi)

Between

Arthur Wamiti Njoroge

Plaintiff

and

Bernard Megosi Kerongo

1st Defendant

Patrick Omari Nyamweya

2nd Defendant

Francis Mwanze

3rd Defendant

Kyalo Maundu

4th Defendant

Enid Wekesa

5th Defendant

Afra Bashir Hachi

6th Defendant

Basir Mohammed Abukar

7th Defendant

Panda International Development Ltd

8th Defendant

Ruling

1. Before court is a Notice of Motion dated November 22, 2019 filed by the 6th and 7th Defendants seeking the following orders;(a)Spent(b)That the Honourable Court be pleased to review and set aside its orders made on July 25, 2019. (c)That costs of this application be provided for.

2. The application is premised on the grounds on its face as well as the supporting affidavit sworn on November 22, 2019 by Bashir Mohamed Abukar. The applicant’s case is that the orders of July 25, 2019 were made on the basis of misrepresentation of facts on the legal status of LR No 12715/258. That the orders were made on the basis of a false affidavit of service denying the Applicant opportunity to be heard; that the orders of injunction are incapable of obedience as LR No 12715/258 had ceased to exist as the same had been subdivided and there was issuance of 24 titles in its place; and that the Applicants have surrendered 22 out of 24 resultant titles to 3rd party purchasers rendering the orders incapable of obedience by them. They attached an agreement for sale, copy of certificate of incorporation, CR 12, deed plan, photographs of the land, an OB report at Mlolongo Police Station and letter from the Plaintiff’s advocate.

3. The application was opposed. The Plaintiff swore a replying affidavit opposing the application. He stated that he was the proprietor of the suit property as leasee, which he purchased in 1998. That he noticed trespassers on the land in 2014, whereof he reported the matter to the Directorate of Criminal Investigation; that he realized that the records at Machakos County Mavoko Sub-County had been changed, so that the records of the suit property to read the 8th Defendant’s name; that having conducted a search for CR 12 he realized that it had two directors namely Peng Xiong and Tan Wug which company was registered on January 28, 2000; and that he realised that the 2nd Defendant through his company Global Estates (East Africa) Limited purported to transferred the suit property to the 8th Defendant.

4. He further stated that as at January 25, 2020, the Plaintiff was informed by the Director of Surveys that there was no subdivision whatsoever; that the Applicants were aware of the orders herein as early as May 12, 2017 as per their admission in Paragraph 19 of the supporting affidavit; that the grounds given by the Applicant are not within the purview of Order 45 Rule 1 that provides for review; and that at all material times the Applicants and the 1st to 5th Defendants were working jointly to perpetuate fraud.

5. The application was disposed by way of written submissions. On record are the Respondent’s submissions dated June 30, 2022, which this court has duly considered.

Analysis and Determination 6. Having carefully considered the application, the replying affidavits and submissions, the only issue that arise for determination is whether the Applicant has met the threshold for grant of an order of review and setting aside of the orders of July 25, 2019.

7. The power to review orders of court is granted in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.Section 80 of the Civil Procedure Act provides as follows;“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; orb)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.”Section 45 Rule 1 of the Civil Procedure Rulesprovides as follows;(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; orb.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.

8. Essentially therefore for the court to exercise its power of review, the Applicant must demonstrate that;(a)They have discovered a new and important matter or evidence which was not within their knowledge even after exercise of due diligence; or(b)That there is a mistake or error apparent on the face of the record, or(c)That there is any other sufficient reason.

9. I have considered the reasons for the application and the Applicants allege that they were not duly served and that the orders made are not capable of compliance by them. That being the case, no ground has been presented which falls under the purview of Order 45 Rule 1 of the Civil Procedure Rules and in the circumstances this court cannot exercise its power of review.

10. As regards setting aside, Order 51 Rule 15 of the Civil Procedure Rules grants the power to this court to set aside exparte orders and provides as follows;“The court may set aside an order made exparte.”

11. The reasons given as basis for setting aside, as stated above is that there was no service and that the orders are incapable of being obeyed as the same is an injunction restraining the Applicant’s from interfering with LR No 12715/258 which land has been subdivided. On the issue of service, I note that the affidavit on record shows that one Denis Mosoti was served on behalf of the 7th Defendant who directed the process server to effect service on the said person on his behalf and the same were signed by the said Denis Mosoti on behalf of the 7th Defendant. Although the Applicants indicated that they were desirous of cross-examining the process server, that was not followed through. In any event, in paragraph 19 of the supporting affidavit the Applicant admits of being made aware of the existence of Milimani suit by a letter from the Plaintiff’s advocate on May 12, 2017. The said letter was attached by the Applicants. In that letter the suit referred to is Milimani ELC Case No 59 of 2016. That is the same case that was transferred from Milimani to this court vide the order of the court made on January 23, 2019 and which file was given Case Number Machakos ELC No 10 of 2019, which is this case. Therefore the allegation that there was no service are baseless and are rejected and I hold and find that the Applicants were duly served but they failed to appear in court.

12. On the question as to whether the order made on July 25, 2019 is incapable of being complied with as the suit title does not exist due to the same having been subdivided into 24 plots, the Applicants have not produced any evidence to show subdivision or new titles in respect thereto and therefore their allegations remain unsubstantiated.

13. In the premises, I find and hold that the Applicants have failed to place sufficient material before this court to justify the prayer for setting aside the orders of July 25, 2023. I therefore find the said application as unmeritorious and I hereby dismiss the same with costs to the Plaintiff/Respondent.

14. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 5TH DAY OF JULY, 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the Presence of;Mr. Odawa holding brief for Ms. Mutinda for PlaintiffNo appearance for DefendantsJosephine – Court Assistant