[2022] KEELC 13542 (KLR)

Njoroge v Mwaura & another (Environment & Land Case 20 of 2022) [2022] KEELC 13542 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEELC 13542 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 20 of 2022

FM Njoroge, J

October 12, 2022

Between

Mary Mumbi Njoroge

Applicant

and

Elizabeth Wambui Mwaura

1st Respondent

Jeremiah Maina Kihunyu

2nd Respondent

Ruling

1. This is a ruling in respect of the application dated May 18, 2022 filed on May 19, 2022 and brought under Section 1A, 1B, 3, 3A, 63 (e), 75(1) and the Proviso to Section 79(G) of the Civil Procedure Act and Order 42 Rule 6 and Order 43 Rule 1(2) and (3) of the Civil Procedure Rules. The Appplicant sought the following orders:a.…Spentb.…Spentc.That leave be granted to the Appellant to appeal against the decision of Honourable L Sarapai PM, made on July 13, 2021 in Naivasha Chief Magistrate’s Court Civil Suit No 59 Of 1985- Elizabeth Wambui Mwaura Vs Mary Mumbi Njoroge & Another.d.That the appeal herein be admitted out of time.e.That pending the hearing and determination of this appeal, a stay of execution of the orders of Honourable L Sarapai PM, made on July 13, 2021 in Naivasha Chief Magistrate’s Court Civil Suit No 59 Of 1985- Elizabeth Wambui Mwaura Vs Mary Mumbi Njoroge & Another be issued.f.That the costs of this application do abide the outcome of the appeal herein otherwise, the same be awarded to the Appellant.

2. The application is supported by the affidavit sworn by Mary Mumbi Njoroge sworn on May 18, 2022. It is evident that in that affidavit she attempts to justify her delay in filing both the appeal and the application in that she states that:a.The 1st respondent filed an application in the lower court suit seeking to execute her judgment given in 1994;b.She took up services of a new advocate to oppose the motion whose attempts to come on record before the execution application was heard failed and the 1st respondent’s application succeeded as an unopposed application; consequently, the applicant stood to lose 25 acres of land to the 1st respondent by reason of the order made;c.Subsequently the applicant’s advocate made an application to come on record and sought stay of execution and leave to appeal against the order but the application was dismissed with costs;d.That the 1st respondent has now commenced the process of transfer of the 25 acres to herself, which the applicant has been in possession of for more than 5 decades, yet the applicant considers herself to have been condemned unheard;e.That the applicant has a strong defence against the 1st respondent’s application for execution;f.That she has satisfactorily explained the delay in bringing the instant application.

3. She avers that the instant application should be granted in the interests of justice.

4. The background to the instant application as narrated in the application is that the 1st Respondent filed the suit in Naivasha Chief Magistrate’s Court Civil Suit No 59 Of 1985 against the applicant’s husband Njoroge Mwangi (Deceased) who was the registered owner of Nyandarua/Ol Aragwai/914 the suit property herein. To the applicant’s knowledge, the matter was never heard. A decision was made by a panel of elders in 1989 awarding one Mwaura Kahiga 25 acres from Nyandarua/Ol Aragwai/914. Her husband had by that time met his demise and before she was substituted on behalf of her deceased husband and take steps against the award it was adopted by the court. Afterwards she was substituted and she made a series of applications some which were successful.

5. Regarding the instant application, the applicant avers that in the year 2021 she learnt that the 1st Respondent had filed an application dated February 12, 2021 which sought to execute the judgment of the court dated January 14, 1994; that she later instructed a new firm of advocates who informed her that gaining access to the court file at the time was difficult in light of the strict prohibition against access to Naivasha Law Courts due to the increased Covid-19 cases; that on July 12, 2021 the advocates managed to peruse the court file and confirmed that the firm of M/s Rumba Kinuthia were still on record on her behalf; that upon the said discovery, her advocates filed a Notice of Change of Advocates and a Preliminary Objection.

6. On July 13, 2021, the 1st Respondent’s application was scheduled for inter partes hearing but the same was allowed for want of opposition. On the other hand, the Applicants application dated July 12, 2021 seeking orders of change of legal representation was not heard and so her advocate could not seek leave to appeal against the said ruling orally since he was not properly on record.

7. It was therefore necessary for the advocate to file an application to come on record and then seek leave to appeal against the order of July 13, 2021 and so they timeously filed the application dated July 26, 2021 in the lower court, seeking the said orders; however, that application dated July 26, 2021 was dismissed on 31/08/2021. Thereafter, she could not consult her advocates further as she contracted Covid and was therefore greatly incapacitated in light of her advanced age (90) until May 2022 when she made full recovery; upon full recovery she immediately instructed her advocates to file the appeal and the instant application. She states that she is willing to abide by any condition including depositing in court the Original title to the suit property in the name of her husband in court.

8. The applicant avers that she has learnt that the 1st Respondent has initiated the process of transfer of the 25 acres of the suit property to herself and that surveyors have been to the suit property in a bid to excise the said portion form the suit property and she states that unless stay of execution of the said ruling and order is granted, she will suffer irreparable harm. She urges the court to allow the instant application.

The Response 9. The 1st Respondent filed her Replying Affidavit dated June 14, 2022 where she deposed that the entire application and proposed appeal are an abuse of the court process calculated to prejudice her by delaying the conclusion of the matter. She further deposed that the Applicant has filed the instant application too late in the day and that this is the fourth appeal she is filing as all the others were either abandoned or dismissed. It is her contention that the Applicant’s numerous appeals and applications have no merit and she has even attempted to fraudulently subdivide the suit land.

10. According to her the history of the entire litigation surrounding the suit land is as follows:

11. In the year 1985 Mwaura Kahiga, whom the 1st respondent now represents, sued Njoroge Mwangi whom the applicant now represents, for the enforcement of a sale agreement made in 1979; that Mwaura had purchased 36 acres from Njoroge; that the land was subdivided and consent was obtained; that the parties then agreed that Mwaura would sell 10 acres to Njoroge at ksh 200,000 and Kshs 148,000/= was paid to Mwaura in this regard; that the balance has never been paid to date; the 10 acres were sold to another person, the 2nd respondent herein, but this time the sale was by Njoroge; subsequently a transfer was executed by the parties and attested to by the area chief and was rejected for that attestation and was not registered and Njoroge refused to execute any other transfer, hence the suit by Mwaura in 1985. No defence was filed; the matter was as was normal then referred to arbitration by a panel of elders who on August 11, 1989 gave their award granting Mwaura 25 acres, which was read to the parties on September 29, 1989; Njoroge sought to set aside the award but met his demise before prosecuting his application and the application was allegedly withdrawn after his wife was substituted; after the withdrawal 3 uneventful years passed and the matter came back to life when Mwaura applied for the adoption of the award as judgment of the court, the joinder of the 2nd respondent herein, and appointment of the applicant herein as the legal representative of Njoroge. On January 14, 1994 D.K Gichuki, SRM, allowed the application. Then Mwaura died soon thereafter and the 1st respondent was substituted for him. With time the 1st applicant herein successfully sought stay pending appeal but failed to file the appeal; 10 years later she sought leave to file the appeal out of time and the High Court declined her request;

12. In 2004 the 1st respondent obtained an order to help realize the judgment. However, the applicant filed an application date May 22, 2009 and effectively caused the court to vacate that order authorizing the surveyor to subdivide.

13. In the same year 2009, the applicant, in yet another application dated June 9, 2009, sought an interim stay of execution and restraining orders against the District Surveyor Nyandarua, barring subdivision of the land pending determination of the suit, which interim orders were extended several times. However, according to the 1st respondent, the applicant herein has purported those interim orders to be a permanent injunction and abused them in this dispute owing to their wording or their extraction.

14. The lower court, while dealing with the application dated May 22, 2009 ordered that the suit be set down for hearing in its ruling dated October 23, 2009. The 1st respondent then filed an application dated November 27, 2009 seeking subdivision and transfer to her of 25 acres which was allowed on April 22, 2010.

15. The applicant then appealed in Nakuru HCCA 107 Of 2010 but her application for a stay of execution pending appeal was declined by the lower court but granted by the High Court on September 8, 2010 and later confirmed. That appeal was subsequently dismissed by this court on June 20, 2018. Thereafter the 1st respondent discovered that the applicant had subdivided the suit land and transferred it to third parties. The 1st respondent then filed an application dated November 7, 2018 seeking joinder of the third parties and to protect the subdivisions as well as cancel their titles to enable execution of judgment as ordered on April 22, 2010 and the application was granted as prayed on December 14, 2018, prompting the filing of Nakuru ELC Appeal No 18 of 2018 which the applicant herein later abandoned after her stay of execution application in it was rejected.

16. The 1st respondent then was asked by the Land Registrar for the personal documents of the applicant’s husband or a court order to help implement the judgment and not having those documents she applied to court in the application dated February 12, 2021, at which juncture the 1st applicant’s counsel sought by application dated July 12, 2021 to come on record and raise a preliminary objection on limitation regarding execution. It is that application that was rejected following which the application dated February 12, 2021 was granted on July 13, 2021 as stated by the applicant, which orders have prompted the instant appeal and application.

17. After she had given the lengthy summary of the case since its inception in the lower court, she averred that the salient point from the lower court record was that there is still a judgment that remains unchallenged currently being executed as contained in the ruling dated January 14, 1994 delivered by Hon Gichuki, SRM. According to her, the lower court had already given orders for the execution of the judgment but the said execution has been frustrated by the Applicant.

18. The 1st Respondent averred that from the court records, the alleged order of June 9, 2009 was improperly extracted and the court dismissed it by its ruling on May 22, 2009. She also averred that the Applicant has been heard all through the years and that she has since refused to vacate the suit land despite the Applicant’s late husband selling the same to the 1st Respondent’s late husband. She further averred that the allegation by the Applicant that she fell ill after the court’s ruling in August 2021 is a lame excuse as no evidence of medical documentation has been provided to support her claim.

19. The Applicant also filed a further affidavit dated July 20, 2022 in response to the 1st Respondent’s replying affidavit. She reiterated the contents of her supporting affidavit and added that she was indeed ill as she managed to obtain a medical summary of her condition from the said period to date.

Submissions 20. The Applicant filed her submissions dated July 20, 2022 on July 22, 2022 where she identified four issues for determination as follows:a.Whether the applicant has made out a case for grant of leave to appeal;b.Whether the appeal ought to be admitted out of time;c.Whether the applicant has made out a case for grant of stay of execution pending hearing and determination of the appeal; andd.Who should bear the costs of the application

21. On the first issue, the applicant relied on Order 43 Rule 1 (2) and (3) of the Civil Procedure Rules and submits that she met the conditions as set out in the said order and has made out a case for grant of leave to appeal. Regarding the second issue, she relies on Section 79G of the Civil Procedure Act and the case of Ziporah Moraa V David Okioma & Another [2020] eKLR and submits that by admitting the appeal out of time, the court will have risen to its higher calling of administering substantive justice and that any prejudice visited upon the Respondents would be cured by an award of costs.

22. Regarding the third issue, the applicant relies on Order 42 Rule 6(2) of the Civil Procedure Rules and submits that the execution of the impugned decision to completion will create a state of affairs that will irreparably negate the essential core of the Applicant’s Appeal. She also cited the case of Patrick Kithaka Borici & Another V Shadrack Nyaga Njeru [2019] eKLR. She also submits that on the issue of delay, she immediately made the instant application upon her recovery. She further submits that on the issue of security, she is willing to deposit the original title to the suit property so that the court can grant the stay. On the final issue, the applicant submits that the costs of the application ought to be pegged on the appeal.

23. I have perused the record and found no submissions filed on behalf of the respondents.

Analysis And Determination 24. This court has considered the application, Replying Affidavits, submissions and authorities cited and I find that the main issue for determination is whether the Applicant has met the required principles for grant of (a) leave to file appeal out of time and (b) stay of execution pending the hearing and determination of an intended appeal.

25. The principles to be considered in exercising the discretion whether or not to enlarge time were considered in the case of First American Bank of Kenya Ltd vs. Gulab P Shah & 2 others Nairobi (Milimani) HCCC NO. 2255 of 2000 [2002] 1 EA 65. These are: (i). the explanation if any for the delay; (ii). the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; (iii). whether or not the respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.

26. Section 79G of the Civil Procedure Act requires that before the Court enlarges the time for appealing the Applicant must satisfy to the court that he/she had good and sufficient cause for not filing the appeal in time.

27. It is not in dispute that the impugned ruling was delivered on July 13, 2021 allowing the 1st Respondent’s application dated GFebruary 12, 2021. There is a delay of 6 months in between. Whether that period ought to be considered inordinate delay depends on the explanation given by the applicant.

28. The applicant’s principal ground is ill health. The Applicant argues that she was unable to file an appeal due to the fact that she had contracted Covid-19 causing her to be incapacitated until May this year when she filed the present appeal. The 1st Defendant on the other hand contends that despite the applicant’s situation, she could have consulted on phone or being unable sent her young sons to travel and therefore termed the said excuse as lame.

29. The applicant has exhibited a medical summary in her further affidavit which states that she attended hospital in July 2021 with symptoms suggesting a covid-19 infection and that she had an underlying condition of hypertension. This court can not tell from that document if the medical challenges the applicant faced were serious enough to render her totally incapacitated. However, it is noteworthy that she is of the advanced age of 83 years as reflected in the medical document in which age physical health and mental faculties face a general decline in most populations and the applicant must be granted the benefit of doubt.

30. The next ground that this court is called upon to consider in extension of time to appeal is the possible merit of the contemplated appeal. The 1st respondent has conceded that by July 13, 2021 when the application dated February 12, 2021 was heard and determined, the applicant’s counsel had lodged an application dated July 12, 2021 seeking court’s leave to come on record for the applicant in order to represent her. I must state at this juncture that though issues of law can be raised at any point in the process and the trial court is bound to consider them, and that limitation in respect of execution process was raised on a preliminary basis in in writing in the record, the issue of the proposed defence that Mr. Gatonye intended to raise on the applicant’s behalf and its merits and the chequered history of the present litigation bore infinitesimal significance in the matter relative to the fundamental principle of natural justice embodied in Article 50 of our Constitution of Kenya 2010. The 1st respondent concedes that an application was made for an adjournment which was rejected and consequently her application was ruled upon, which ruling is the subject of the instant appeal. In this court’s view, there is a palpable nexus between the rejection of the applicant’s counsel’s application for adjournment of the hearing of the 1st respondent’s application to the extent that this court must ask itself whether a triable issue relating to breach of principles of natural justice arises in the proposed appeal. In the circumstances it is impossible to hold that the intended appeal is not arguable.

31. The third ground is whether or not the respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant. In the present case, it is a fact that judgment was entered and the pending issue has only been execution. It is axiomatic that delay in the execution of the 1st respondent’s judgment would result if the instant application is granted yet this is a very old dispute which this court is obliged to conclude expeditiously if only to permit the litigants to retire and enjoy their advanced years in peace. However, there is no delay that can not be compensated for by way of costs if asked for. Secondly, the demands of due process necessarily envisage effluxion of time owing to the concomitant need for application principles of natural justice.

32. I am therefore satisfied that the delay or default on the part of the applicant has been satisfactorily explained and that she has an arguable appeal, and that lastly the prejudice in terms of delay likely to be occasioned to the 1st respondent if the application is granted can be compensated for by way of costs. Consequently, I also find that the execution process initiated by the 1st respondent must be stayed so that the appeal may not be rendered nugatory. The instant application therefore has merit.

33. However, when an application that entails more delay in a 37-year-old dispute is being dealt with, the reflex is a reversion to the questions as to why the delay in its conclusion, who has been responsible for the delay on most occasions and whether any mischief can be detected in the conduct of such a party. That will in most cases guide the court as to what nature of orders befit the situation. In saying this I must confess that I have not had occasion to read first-hand the lower court record, which has not yet been availed to this court, and I rely on the annextures of the parties.

34. The history of this dispute is replete with judicial decisions, by the Hon D K Gichuki on January 14, 1994, Hon Justice D A Onyancha made on November 8, 2007, Hon N N Njagi, PM, Naivasha made on April 22, 2010, Hon Justice D O Ohungo on June 20, 2018, Hon E Kimilu on December 14, 2018 and Hon Justice Sila Munyao on July 9, 2019, of which I will quote only three.

35. Hon D K Gichuki on January 14, 1994 observed as follows in an application seeking judgment against the applicant as well as substitution of the current applicant as a defendant, for her late husband:“The plaintiff applicant raised a total of ksh 126,000/= which apparently saved the whole land of the defendant /respondent from being attached for a loan obtained from the bank on a further debt owed to an individual…when this defendant /respondent got money, he paid the plaintiff/applicant ksh 148,000/= but as is apparent from the case herein the plaintiff/applicant did not know that this money was coming from a second buyer…”

36. In the same decision the learned magistrate observed:“After the death of the defendant /respondent, an application to substitute the wife of the deceased as a defendant to the suit was filed by her counsel. The wife was being substituted as a defendant as a legal representative of the deceased husband. Application to confirm her as a substituted defendant was consented to by counsels for the plaintiff and defendant on 23/2/90. The same application was later withdrawn on 29/6/90… No action was taken thereafter by the interested parties particularly these interested to defend the suit until application herein was filed on 24/12/93, a period of over 3 years….”

37. He also stated as follows:“He (the original defendant) conceded to have sold 5 acres out of the original land parcel…which was 40 acres. This was done while the 1st defendant /respondent was continuing with this sale transaction with the plaintiff herein. This left a balance of 35 acres of land and as the case is herein, the ten acres that the 1st defendant /respondent agreed to sell to Jeremiah Maina When this agreement was being made, it is apparent that Jeremiah Maina was aware of the transactions between the 1st defendant /respondent herein and the plaintiff/applicant.”

38. On his part Hon Onyancha J had this to say in an application for extension of time to file an appeal against the ruling of the Hon D K Gichuki of January 14, 1994:“The records show and it was finally conceded that both parties in that case were properly represented by qualified and competent advocates… the record shows that after the ruling and orders were made in early 1994 the applicant herein sought and obtained a stay order to enable them appeal… the applicant depones that he requested his advocate to lodge an appeal out of tiume but the advocate declined unless she paid his fees… by a memorandum of appeal dated 30/.6. 2004 the applicant purported to file an appeal but it was later withdrawn… what the records confirm, which was also not denied by the applicant, is that no attempt to file the intended appeal until (sic) about ten years later.(30. 6.2004).... The respondent also pointed out that what really shook the applicant herein from his/her sleep is the fact that on 27. 7.2004 the respondent under an application dated 19. 7.2004, set aside the stay granted to the applicant ten years before on 27. 7.1994…. It is not easy for the applicant to convince this court that he was not relying on the stay orders he had obtained to sleep and do nothing for a whole ten years.”

39. The judge also stated as follows regarding the applicant’s claim that her advocates failed to inform her of her right of appeal:“In such a case the applicant should be properly advised to seek recourse on or relief from the advocates upon their own admission that they had failed to inform the applicant of his or her rights of appeal.”

40. To date this court has not been entertained to any drama involving a claim laid by the appellant against any of her counsel for relief for misconduct or professional negligence. Earlier, upon an examination of the record and finding it improbable that she was not informed of her right to appeal, the Hon Judge concluded:“This court would also similarly hold that the applicant’s delay was not due to lack of money.”

41. According to the Judge, the persons who tried to renege on the contract entered into by the two original parties to the lower court suit were the applicant and her son. The Judge stated as follows:“Taking the facts above into account, this court can not but observe that the applicant’s hands have not been clean all through. Apart from the undue and inordinate delay the applicant’s conduct in relation to matters concerning the land in dispute, have been inequitable. He does not, therefore, in my view and finding deserve a favourable exercise of an equitable relief such as an extension of time… Furthermore, the applicant who was given an equitable relief of stay of execution misused and abused it for a period of ten years until it was taken away from him in 2004. And yet in this application, he is again seeking another stay.”

42. And yet in this application, she is again seeking another stay. It is noteworthy that Justice Onyancha dismissed her application subject of the ruling above. And now, having quoted those weighty comments, do I need go through the ruling of the Hon N N Njagi, PM, Naivasha made on April 22, 2010, the judgment of Hon Justice D. O Ohungo on June 20, 2018 (upholding Hon Njagi’s ruling,) Hon E Kimilu on December 14, 2018 (cancelling subdivision done while the judgment had not been enforced?)

43. However, I need not ignore the comment of my brother Justice Sila Munyao on July 9, 2019 (decrying how subdivision was done while the judgment had not been enforced and the misuse of the Succession Court to circumvent the existing judgment in the lower court) as follows:“To me, the applicant simply wants to delay the execution of the judgment, and nothing more, using one technicality after another. I refuse to be drawn into these technicalities and in fact I am persuaded that I will be perpetrating an injustice if I grant the stay orders.”

44. Hardly a flattering record this is for the applicant. It is apparent that she has delayed the execution of the judgment which she has never set aside and any judicial officer dealing with her successive interlocutory applications is at a loss as to what her path will finally lead to while that judgment is still in place.

45. Notwithstanding the foregoing, our justice system, which deems innocent accused persons apprehended in the act while holding bloodied murder weapons, which permits pursuit of justice for them by hearing them till proven guilty, which takes mitigatory statements before judgment, calls upon this court to severe the events of July 13, 2021 from the earlier history of the matter so that the applicant does not face condemnation wholesale on the basis of that history alone while she has established grounds for extension of time in the present application.

46. The only question sequel to those in paragraph 33 above and the findings of this court in the immediately preceding paragraphs is the question: in a case where such a record exists in respect of the applicant, what should the court do to balance the scales of justice between her and the respondent whom she has occasioned considerable hardship, if the orders sought are granted? It is clear that the applicant has expressed willingness to abide by any condition that the court may impose on her for allowing the instant application, and proposes the deposit of the title deed in court, which in my view is not enough. I will impose proportionate conditions on her in the orders that I will make herein after, particularly for the purpose of expediting the disposal of the appeal, for this court must, not be seen to condone delay on her part.

47. The upshot of the foregoing is that I grant the application dated May 18, 2022 and I issue the following orders:a.Leave is hereby granted to the applicant to appeal out of time against the decision of Honourable L Sarapai PM, made on July 13, 2021 in Naivasha Chief Magistrate’s Court Civil Suit No 59 Of 1985- Elizabeth Wambui Mwaura Vs Mary Mumbi Njoroge & Another;b.The appeal herein is hereby admitted out of time and the memorandum of appeal dated May 18, 2022 is deemed properly filed and served;c.For an interim period of 7 days from the date of this ruling, and to enable the appellant comply with the conditions set out herein below, no execution shall be levied against her.d.A record of appeal that meets all the requirements of law and procedure shall be filed and served within 7 days of this order, together with submissions of the appellant and a bundle of authorities, and no further documents shall be filed thereafter and on the mention date to be given hereinafter, an affidavit showing service thereof shall be on the file record, in default of which the instant appeal shall stand automatically struck out;e.If the record of appeal is filed as required in (d) above, then, pending the hearing and determination of the appeal, execution of the orders of Honourable L Sarapai PM, made on July 13, 2021 in Naivasha Chief Magistrate’s Court Civil Suit No 59 Of 1985- Elizabeth Wambui Mwaura Vs Mary Mumbi Njoroge & Another shall be stayed;f.In addition to the stay order given in limb no (d) above, the current status quo regarding the registration of Land reference Nyandarua/Ol Aragwai/914 in the lands register and physical occupation on the ground shall be scrupulously observed by the parties and no change in character of the land or land use and all in it shall be effected pending the determination of the appeal;g.Further, in addition to the foregoing orders, the applicant shall deposit in an interest earning account held in a reputable local bank in the joint names of the advocates presently appearing for the parties the sum of Kshs 2,000,000/= (Kenya Shillings Two Million Only) within 7 days of this order as security for costs;h.The applicant shall file together with her record of appeal an undertaking as to damages in favour of the 1st respondent which she may sustain during the pendency of the appeal.i.If all conditions herein above are met, the prosecution of the appellant’s side of the appeal shall be disposed of only by way of adoption of the filed written submissions ordered in (c) above;j.That the costs of this application do abide the outcome of the appeal herein.It is so ordered.

DATED, SIGNED AND ISSUED AT NAKURU VIA ELECTRONIC MAIL ON THIS 12TH DAY OF OCTOBER, 2022. MWANGI NJOROGEJUDGE, ELC, NAKURU