[2023] KEELC 18418 (KLR)

Olesopia alias Simon Sopia & another (Suing as legal administrators of the Estate of Kamur Ole Tierikat (Deceased) v Letiepoon alias Tiepon Olekitui (Environment & Land Case 35 of 2021) [2023] KEELC 18418 (KLR) (29 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18418 (KLR)

Republic of Kenya

In the Environment and Land Court at Kilgoris

Environment & Land Case 35 of 2021

EM Washe, J

June 29, 2023

IN THE MATTER OF: LIMITATION OF ACTIONS ACT, CAP 22 LAWS OF KENYA -AND- IN THE MATTER OF: L.R.NO.TRANSMARA/SHARTUKA/97 -AND- IN THE MATTER OF: A CLAIM OF ADVERSE POSSESSION PURSUANT TO SECTION 38 OF LIMITATION OF ACTIONS ACT.

Between

Olenapoe Owiti Olesopia Alias Simon Sopia & Sopia Jackson Rankalo (Suing As Legal Administrators Of The Estate Of Kamur Ole Tierikat (Deceased)

Plaintiff

and

Lekatoi Ole Letiepoon Alias Tiepon Olekitui

Defendant

Ruling

1. The Defendant (hereinafter referred to as “the Applicant”) filed a Notice of Motion application dated 16th September 2020 (hereinafter referred to as “the present application”) seeking for the following Orders; -a.The instant application be certified as extremely urgent and same be heard ex-parte in the first instance.b.Pending the hearing and determination of this Application inter-partes, the Honourable Court be pleased to stay its orders issued on the 16th of August 2019, 10th September 2019 and any further proceedings in this matter.c.Pending the hearing and determination of this suit, the Honourable Court be pleased to stay its orders of 16th August 2019, 10th September 2019 and any further proceedings in this matter.d.The Honourable Court be pleased to set-aside its ex-parte proceedings of 3rd March 2020 and subsequent orders issued on 16th August 2019 and 10th September 2019 and afford a chance to the applicant to defend the suit herein.e.Upon granting of prayer No. 4, the draft Statement of Defence annexed herewith be deemed as duly filed upon payment of requisite filing fees.f.Costs of this Application be in the cause.

2. The grounds in support of the prayers hereinabove are contained in the body of the application as well as the Supporting Affidavit sworn on the 16th of September 2020.

3. A summary of the grounds in support of the present application are as follows; -i.The Applicant is a Defendant in the Originating Summons dated 25th July 2019 relating to the property known as L.r.no. Transmara/shartuka/97 filed by the Plaintiff herein.ii.The Applicant as the Defendant in the Originating Summons dated 25th July 2019 filed by the Plaintiff instructed the firm of Messrs Mireri & Company, Advocates by paying a deposit of Kenya Shillings Fifty Thousand (KShs 50,000/-) as legal fees on the 30th September 2019. iii.Thereafter, the Applicant states that there was a breakdown of communication between the firm of Mireri & Company, Advocates and herself which resulted to the failure to file a Defence or attend the hearing of the case on 3rd March 2020. iv.The Applicant alleges that she is desirous of defending the suit filed by the Plaintiff (hereinafter referred to as “the Respondent”) and annexed a draft Statement of Defence in the present application.v.The Applicant is therefore apologetic for the failure to file the necessary defence and seeks a hearing on the substantive Originating Summons dated 25th July 2019 before her ownership and/or legal rights are affected.

4. The present Application was duly served on the Respondent who opposed it by filing a Replying Affidavit sworn on the 18th September 2020.

5. The Respondent’s Grounds of opposition can be summarised as follows; -i.The Respondent confirmed that indeed he filed an Originating Summons dated 25th July 2019 against the Applicant.ii.Together with the Originating Summons dated 25th July 2019, the Respondent also filed an Interlocutory Application dated 26th July 2019 seeking for injunctive orders therein.iii.Both the Originating Summons dated 25th July 2019 together with the Interlocutory Application dated 26th July 2019 were duly served on the firm of Mireri & Company. Advocates which was acting for the Applicant herein.iv.Based on the Interlocutory Application dated 26th July 2019, the Honourable Court made various orders on the 16th August 2019 and 10th September 2019 which have not been so far reviewed, varied and/or set-aside so far.v.The Respondent states that the orders issued on the 10th September 2019 are what gave an opportunity to the Applicant to file the necessary documents for defending the Originating Summons dated 25th July 2019. vi.The Respondent submits that the Applicant has not be vigilant enough in defending this proceeding and where a party fails to comply with Court’s directions, such a party should not be entertained at a later date.vii.The Respondent further indicated that Applicant has not provided any reasonable explanation as to the failure and/or inaction of filing their response to the Originating Summons dated 25th July 2019 and therefore any proceedings and/or orders issued in the proceedings should not be discharged.viii.Finally, the Respondent informed this Honourable Court that the orders issued on the 14th October 2019 and all other subsequent directions had been fully complied with and there was nothing to set-aside to be stayed as sought in the present Application.

6. The Honourable Court directed parties to file their written submissions relating to the present Application.

7. The Applicant duly filed their submissions on 30th March 2023 while the Respondent filed their submissions on 21st April 2023.

8. The Honourable Court has gone through the present Application, the Replying Affidavit and submissions filed herein and identified the following issues for determination.Issue No. 1- Has The Applicant Adduced Suffiecient Grounds To Stay The Orders Of 16Th August 2019, 10Th September 2019 Or Any Other Further Proceedings Thereof?Issue No. 2- Has The Applicant Adduced Sufficient Grounds To Set-aside The Proceedings Of 3Rd March 2020 Or The Orders Issued On 16Th August 2019 And 10Th September 2019?Issue No. 3- Has The Applicant Adduced Sufficient Grounds To Grant Leave To The Applicant To File Their Defence?Issue No. 4- Who Bears The Costs Of The Present Application?

9. The issues having been outlined hereinabove, the same will now be discussed hereinbelow by the Honourable Court.

Issue No. 1- Has The Applicant Adduced Suffiecient Grounds To Stay The Orders Of 16Th August 2019, 10Th September 2019 Or Any Other Further Proceedings Thereof? 10. In the determination of this issue, the Honourable Court needs to remind itself of the orders issued on the 16th August 2019 and 10th September 2019.

11. On the 16th of August 2019, the Honourable Court directed that the Interlocutory Application dated 26th July 2019 be served afresh together with the relevant hearing notice on the Applicants herein.

12. On the same day, the Honourable Court directed that the Interlocutory Application dated 26th July 2019 be heard inter-parte on the 10th of September 2019.

13. On the 10th of September 2019, in the presence of Counsel for the Respondents herein the Honourable Court issued a temporary Injunction against the Applicant prohibiting the entering, re-entering, cultivating, digging, building structures, cutting down trees and/or interfering with the quiet occupation and/or possession of the property known as L.r.no. Transmara/shartuka/97 which is occupied, possessed and/or in use by the Respondent in this Application pending the hearing and determination of this suit.

14. Further to that, the Honourable Court issued a stay of proceedings in Kilgoris Elc No. 5 OF 2019 and in particular the hearing date scheduled on 5th November 2019 pending the hearing and determination of this suit.

15. In the Replying Affidavit filed by the Respondent to the present Application, there is an allegation that the Applicant herein is in disobedience of the orders issued on the 10th September 2019 and should not therefore be accorded a hearing as there is disobedience of Court Orders.

16. This issue of disobedience raised by the Respondent in the present application against the Applicant seem to have been raised something ago and according to the Ruling pronounced on the 28th of June 2021, the Honourable Court dismissed the application for Contempt filed against the Applicant herein.

17. Consequently therefore, there is no reason whatsoever to deny the Applicant an opportunity to file, prosecute and/or ventilate its issues before this Honourable Court.

18. Be as it may, its is clear in the proceedings that the Applicant and/or a representative from the firm of Mireri & Company, Advocates were not present on the 10th of September 2019.

19. The Memorandum of Appearance filed by the firm of Mireri & Company, Advocates was dated 11th October 2019 and filed on the 14th of October 2019.

20. Thereafter, the firm of Mireri & Company, Advocates filed an application dated 14th January 2020 on the 16th January 2020 to ceasing acting for the Applicant for lack of proper instructions.

21. The Honourable Court has gone through the said Application dated 16th January 2020 by the firm of Mireri & Company, Advocates and take note that the Counsel’s position is that although a deposit had been made, the full fees had not been paid and therefore it was not in a position to act on behalf of the Applicant.

22. According to this Honourable Court’s view, the orders of 16th August 2019 can not be stayed as the proceedings of 10th September 2019 fully undertaken.

23. The Orders that are still in place are those issued on the 10th of September 2019 which should subsist during the hearing and determination of this suit.

24. The Court file confirms that the Originating Summons dated 25th June 2019 was heard on the 3rd of March 2020 with three witnesses giving evidence thereof and the Respondent closing his case.

25. However, these proceedings state that the Applicant herein who is the Defendant was not present during the proceedings of 3rd March 2020.

26. Once again, this Honourable Court is not able to stay the proceedings undertaken on the 3rd of March 2020 as this is an act that has since been undertaken and cannot be stopped.

27. As appertains the Order issued on the 10th September 2019, the Applicant has not placed before this Honourable Court any evidence to show any hardship and/or inconvenience caused by these orders that would enable this Honourable Court to exercise its discretion and stay the same.

28. In essence therefore, Prayer No. 2 and 3 of the present Application are not granted.

Issue No. 2- Has The Applicant Adduced Sufficient Grounds To Set-aside The Proceedings Of 3Rd March 2020 Or The Orders Issued On 16Th August 2019 And 10Th September 2019? 29. The second issue for determination is whether or not the Orders of 16th August 2019, 10th September 2019 and 3rd March 2020 should be set-aside.

30. As discussed hereinabove, the Applicant has not placed any evidence before this Honourable Court of any hardship and inconvenience that has been occasioned to him so far.

31. These orders issued on 10th September 2019 have been in force for the last about 3 years without the Applicant taking any steps to remedy any hardship or inconvenience caused from the issuance of these orders.

32. The Honourable Court is persuaded that the said Orders issued on the 10th of September 2019 were to ensure that no party steals a match from the other pending the hearing and determination of the main suit.

33. The Orders issued on 10th September 2019 clearly identified the Respondent to be the person to be in occupation, possession or put in use the property known as L.r.no. Transmara/shartuka/97 pending the hearing and determination of this suit.

34. The Applicant herein has not challenged this declaration by way claiming occupation or possession thereof and therefore there is no reason whatsoever to set-aside the Orders issued on the 10th September 2019.

35. As to the proceedings undertaken on the 16th August 2019 and 10th September 2019, the Honourable Court is of the considered view that the same were dealing with interlocutory issues and in particular the Application dated 26th June 2019.

36. This Honourable Court having arrived at the decision that the proceedings of 16th August 2019 and 10th September 2019 cannot be stayed, then by extension the same cannot be set-aside.

37. Turning to the proceedings undertaken on the 3rd of March 2020, the Court is of the view that these proceedings deal with the substantive Originating Summons dated 25th June 2019 which the Respondent has testified and closed its case but the Applicant is yet to testify.

38. The hearing process of the substantive Originating Summons dated 25th June 2019 is still ongoing as not decision has been rendered therein.

39. The Applicant submits that she was not aware of the said hearing date of 3rd March 2020 and in any event, she was unwell and incapable of attending Court.

40. The Applicant has produced her Kenyan Identification Card as well as the Treatment Notes from the medical institution she attended for treatment on the 3rd of March 2020.

41. The Respondent has not disputed the Applicant’s allegation of being unwell on the 3rd of March 2020 and this Honourable Court does not also have reasons to doubt this allegation in view of the treatment notes produced herein.

42. In essence therefore, this Honourable Court is satisfied that there is sufficient reason to explain the Applicant’s absence on the hearing day of 3rd March 2020.

43. To that end, the Honourable Court does hereby set-aside the ex-parte proceedings undertaken on the 3rd March 2020.

Issue No. 3- Has The Applicant Adduced Sufficient Grounds To Grant Leave To The Applicant To File Their Defence? 44. On this issue, the Applicant is seeking the Honourable Court’s leave to file her Statement of Defence out of time.

45. The Applicant stated that she is an elderly person who is illiterate and not familiar with the complex legal procedures that appertain to litigation.

46. In her wisdom, the Applicant instructed a legal firm to act on her behalf but it seems that all the said firm did was to file a Memorandum of Appearance only.

47. The instructed legal firm was not happy with the deposit made by the Applicant and failed to file any other documents including a holding Defence.

48. The only other document that was filed by the instructed legal firm apart from the Memorandum of Appearance was the Application to cease acting on the 14th of January 2020.

49. During all this time, the Respondent proceeded with the litigation process in exclusion of the Applicant herein.

50. Article 48 of the Kenyan Constitution, 2010 provides that every Kenyan should have access to justice without any impediment.

51. Further to that, Article 50 also provides that every person shall be accorded a fair hearing before any Court of law including the right to appeal thereof.

52. In this present Application, it is not in doubt that the Applicant is an old lady who is not literate and further challenged in regards the legal procedures of the Kenyan legal system.

53. It is therefore not something extra ordinary for such persons where there is absence of a qualified legal Counsel to make errors and/or omissions either in the procedure or hearing of legal matters.

54. The Honourable Court’s considered view is that such persons should not be condemned but assisted to advance their cases with a view of arriving at a just and fair decision.

55. In this present Application, the Honourable Court is satisfied that the Applicant has given sufficient grounds explaining the difficulty and/or omission in filing her statement of Defence within the prescribed time provided in law.

Issue No. 4- Who Bears The Costs Of The Present Application? 56. The last issue is who should bear the cost of this Application.

57. In the Honourable Court’s opinion, this Application was made with a view of enabling the Applicant access justice by being given a chance to participate and defend herself.

58. Consequently therefore, the Costs of this Application should abide the outcome of the substantive Originating Summons dated 25th June 2019.

Conclusion 59. The Honourable Court upon considering all the above issues hereinabove hereby makes the following Orders in determination of the Application dated 16th September 2020; -A.The Proceedings Undertaken On The 3Rd Of March 2020 Be And Are Hereby Set-aside Forthwith.B.The Applicant Is Hereby Granted Leave Of Fourteen (14) Days From Today’s Date To Prepare, File And Serve Their Statement Of Defence.C.The Respondent Is Also Granted Leave Of Fourteen (14) Days Upon Service Of The Statement Of Defence To Prepare, File And Serve Any Further Affidavit Is Need Be.D.The Orders Issued On The 10Th September 2019 Shall Continue To Exist Pending The Hearing And Determination Of The Substantive Originating Summons Dated 25Th June 2019. E.Costs Of The Present Application Will Abide The Outcome Of The Substantive Originating Summons Dated 25Th June 2019.

DATED, SIGNED & DELIVERED VIRTUALLY IN KILGORIS ELC COURT ON DAY OF 29TH JUNE 2023. EMMANUEL.M.WASHEJUDGE