[2021] KEELC 3745 (KLR)
The court declined to grant the application for review of the judgment because there were unresolved issues regarding the proposed allocation of land, including a discrepancy in the total acreage and lack of clarity on the fate of the remaining 0.4 acres. Additionally, the court noted that the authority for the 2nd...
Source-derived case information.
- Citation
- [2021] KEELC 3745 (KLR)
- Parties
- Plaintiff: Phyllis Kaminchia; Plaintiff: Rebecca Mwiti Mongorwe; Plaintiff: Julia Nchenge; Defendant: M’Rungwento Mbogori; Defendant: David Silas Safari; Defendant: Joseph Kithinji Kangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 59 of 2005
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- Application for review declined pending further verification.
- Legal Topics
- Review of Judgment, Land Partition, Consent Orders, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phyllis Kaminchia
Plaintiff
Rebecca Mwiti Mongorwe
Plaintiff
Julia Nchenge
Plaintiff
M’Rungwento Mbogori
Defendant
David Silas Safari
Defendant
Joseph Kithinji Kangi
Defendant
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the court should review its earlier judgment regarding the partition and allocation of land among the plaintiffs.
- 2 Whether the alleged post-judgment agreement among the plaintiffs is valid and enforceable without further verification.
- 3 Whether the supporting affidavit by the 2nd plaintiff is properly authorized by all applicants.
Ratio Decidendi
The court declined to grant the application for review of the judgment because there were unresolved issues regarding the proposed allocation of land, including a discrepancy in the total acreage and lack of clarity on the fate of the remaining 0.4 acres. Additionally, the court noted that the authority for the 2nd plaintiff to swear the affidavit on behalf of the other applicants had not been provided, and the new allocation disproportionately favored the 2nd plaintiff. In the absence of further verification and confirmation from all parties, the court found it inappropriate to allow the application based solely on the unopposed affidavit. The court exercised its discretion to withhold a...
Court Disposition
Application for review declined pending further verification.
Orders
- All four plaintiffs are directed to appear before the court to confirm their claims regarding the proposed land allocation.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
MERU ELC CASE NO. 59 OF 2005
PHYLLIS KAMINCIA..................................................................1ST PLAINTIFF
REBECCA MWITI MONGORWE.............................................2ND PLAINTIFF
JULIA NCHENGE........................................................................3RD PLAINTIFF
VERSUS
M’RUNGWENTO MBOGORI.................................................1ST DEFENDANT
DAVID SILAS SAFARI.............................................................2ND DEFENDANT
JOSEPH KITHINJI KANGI....................................................3RD DEFENDANT
RULING
1. This ruling is in respect of the application dated 17. 12. 2020, which was filed by the plaintiffs. The respondents have not opposed the same. The plaintiffs/applicants urge the court to review the judgment delivered herein on 25. 4.2019 in terms of acreage and settlement on the ground.
2. In the judgment, the court had directed the 4 plaintiff’s to share the original parcel no. Abothuguchi/Gaitu/69 in 4 equal portions. The court had awarded each plaintiff 2. 6 acres out of the 4. 1 hectares (4. 21 ha x 2. 471 acres = 10. 4 acres).
3. In the supporting affidavit of Rebecca Mwiti (the 2nd plaintiff), she contends that the plaintiffs have agreed to share the land as follows:
- Phylis Kamincha 2 acres
- Ruth Nkuene 2 acres
- Julia Nchenge 2 acres
- Rebecca Mwiti 4 acres.
4. In the case of Nuh Nassir Abdi v. Ali Wario & 2 others (2013)e KLR EP No.6 of 2013 G.V. Odunga J, observed that:-
“A decision whether or not to vary, set aside or review earlier orders was an exercise of judicial discretion and the court could only exercise such discretion if so to do would serve useful purpose...”
5. Thus ultimately, this court has discretion on whether to allow the application even if the same is unopposed.It has been averred that the parties are in agreement on what each applicant will be entitled to. However, this court is left with questions to which answers have not been provided. To start with, the land is 10. 4 acres but the proposed agreement totals to 10 acres. What is the fate of the balance of 0. 4 acres?
6. Secondly, the court cannot help but be cognizant of the fact that despite it being averred in the supporting affidavit that the 2nd applicant has authority to swear the said affidavit on behalf of the other applicants, the said authority has not been availed.
7. Thirdly, the 2nd applicant just so happens to get 4. 0 acres in the new agreement which is double of what the other applicants will be getting!
8. For the reasons cited herein, and this being an alleged post judgment consensus, then I am hesitant to allow the application in absence of further verification. In the circumstances, I decline to give a final decision in respect of the application. Instead, I direct the 4 parties/plaintiffs to appear before this court to confirm their claims.
DATED, SIGNED AND DELIVERED AT MERU THIS 14TH DAY OF APRIL, 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 2. 2.2021. 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