[2018] KEHC 4570 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

MISC. APPLICATION No. 29 OF 2014

BETWEEN

REPUBLIC.................................................................................APPLICANT

VS.

ATTORNEY GENERAL................................................1ST RESPONDENT

ADJUDICATION OFFICER URINGU II

ADJUDICATION SECTION TIGANIA......................2ND RESPONDENT

DEMARCATION OFFICER TIGANIA......................3RD RESPONDENT

LISTON MUTUMA KIUNGA......................................4TH RESPONDENT

AND

JOSPHAT DAVID MWILARIA......APPLICANT/INTERESTED PARTY

RULING

1. The Notice of Motion dated 25th June 2018 is seeking the following prayers:

a. The application be certified urgent and it be heard on priority basis;

b. That the Order given vide a ruling of 18. 6.2018, dismissing the application dated 16. 02. 2016 for want of prosecution be set aside and the interested party /applicant be allowed to prosecute the application dated 16. 02. 2016 within seven days from the date of the ruling on this application or any other period as the court may deem fit to Order or direct.

c. That cost of the Application be in the application dated 16. 02. 2016.

2. The Notice of Motion is founded on the grounds that the application dated 16/02/2016 was dismissed for want of prosecution on the 18th June 2018 yet it was not opposed by the respondents; that on that date the interested party was in court to demonstrate his interest in the matter; that the sufficient reason why the said application should be reinstated is that the interested party and the respondents were negotiating and had agreed that the respondents would not oppose the application and that the interested party had taken steps to prosecute the matter which concerns family land. These are the main grounds that are addressed by the affidavit of the applicant which is dated 25th June 2018and which is attached to the notice of motion.

In that affidavit the applicant avers that his father died on 25th January 2003 and none of his children were enjoined in these proceedings. He took steps in this matter by filing a supplementary affidavit on 7th June 2018. He avers that the reason why the application was not fixed for hearing was the directive given in early 2017 that the registry staff would be fixing dates and serving the same upon litigants or their advocates, and that the court registry appears to have been focusing on and giving priority to old matters.

The 1st 2nd and 3rd Respondent’s Response.

The respondents deny that there has been any element of negotiations between them and the applicant. They aver that they have never consented that there was any fraudulent consent entered into in this suit as alleged and that the name of the counsel is being used to mislead the court into believing that the State Counsel is the cause of the delay in the prosecution of the application that is sought to be reinstated.

The 4th Respondent’s Response.

The 4th respondent filed a replying affidavit dated 28th June 2018. He avers that the application is defective, that it lacks merit, that there is no sufficient reason shown why the application that was dismissed had not been prosecuted, that the allegations of pursuit of a consent with the Attorney General have not been proved, that the allegations of directions of the court directive to the court registry on the fixing of dates had not been proved, that he had opposed the application, that allegations of fraud can not be an excuse for failure to prosecute the application, and that he is not privy to the alleged consent with the Attorney General even though he is a party.

I have given thought to the application at hand. There is great weight in the denial of the State’s denial of attempts to enter into a consent over the application dated 16/2/2016. Indeed it is noteworthy that the applicant has not annexed any evidence such as correspondence between him and the office Of The Attorney General to demonstrate that there were any negotiations that had passed between them; and even if there were to be such negotiations the 4th respondent avers and it appears to me to be the case that he was not involved in those negotiations yet he would need to be a party to the resultant consent if it was to be valid for endorsement by the court.

I have reviewed this file record and found that on the 18th February 2016 the applicant was enjoined to these proceedings as the legal representative of his father’s estate. Pending the inter partes hearing of the application the execution of the judgment dated and delivered herein on 6th November 2014 and all consequential Orders was stayed. What remained to be prosecuted of that application was the prayer seeking that the judgment dated and delivered on 6th November 2014 be set aside and the interested party be granted leave to respond to the main judicial review notice of motion application and participate in the hearing of the same.

It is evident that if the applicant’s father died on the 25/1/2003and none of his children were enjoined in the matter and the consent in this matter was entered into in the year 2014, there may be merit in the claim that the estate was not heard in this matter.

Order 53 Rule 3(2), (3) and (4)of the Civil Procedure Rules provides as follows:

“(2) The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any Order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings.

(3) An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion shall be filed before the notice is set down for hearing, and, if any person who ought to be served under the provisions of this rule has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the High Court on the hearing of the motion.

(4) If on the hearing of the motion the High Court is of the opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this rule, the High Court may adjourn the hearing, in Order that the notice may be served on that person, upon such terms (if any) as the court may direct.”

I have perused the verifying affidavit filed by the ex-parte applicant in this matter dated 2nd September 2014. There appears to be three persons who were involved in the matter of the subject land while it was being handled by the adjudication authorities and the Njuri-Ncheke, if the latter ever dealt with the matter as stated by the ex-parte applicant. These are: the ex-parte applicant, the applicant’s father and one Moses Thuranira Akwalo. The applicant’s father is said to have been represented by the said Moses Thuranira Akwalo. Necessarily, there would be need to have the affidavit of the ex-parte applicant on the record stating that these two persons he mentions were served. The ex-parte applicant never enjoined them to the proceedings. The Chamber Summons for leave was filed on the 2nd September 2014. The notice of motion was filed on 7th October 2014. The judgment of the court reads as follows:

“When this matter came up for directions on 6/11/2014 the parties asked the court to adopt a consent they had signed on 3/11/14 and filed on 6/11/14. The consent was in the following terms….”

The effect of that consent is that the entire suit was marked as settled within one month before the joinder of any other party. Very soon thereafter began very spirited attempts by the ex-parte applicant to execute the judgment in this matter.

Having gone through the record, I find that there may have been one major omission, and that is the filing of an affidavit by the ex-parte applicant in compliance with Order 53(3)(3)of theRules. Inadvertent slips during court proceedings may occur. Certain steps may be missed which may render some subsequent proceedings to be challengeable. I find that to be the case in this matter. Without commenting on the merits or otherwise of the application for setting aside judgment which will be decided at another time, this court is inclined to examine certain aspects of Judicial Review proceedings that relate only to its decision regarding the application dated 25/6/2028.

The most important element of court proceedings is service of process. Not only is a whole Order in the Civil Procedure Rules devoted to service, but Order 53(3) of the Civil Procedure Rules also devotes certain clauses to the issue of service.

Regardless of all the other merits of the application dated 25th June 2018, I find that since such an affidavit had not been shown to have been filed, there is great probability that none of the applicant’s or deceased’s family members could have known of the existence of these proceedings, yet they appear to be affected. Having regard to the implications of Order 53(3)(4), I am inclined to consider the application before me favourably.

This court is of the view that substantive justice ought to be done in all cases. In view of the repercussions of the failure to file an affidavit under Order 53 Rule 3(3) I find that it is in the interests of justice that an application such as the one dated 25th June 2018 be reinstated for hearing.

I am also of the view that whatever the circumstances that led to the delay in the prosecution of the dismissed application dated 16/2/2016, the application dated 25th June 2018 could not have been made so hot on the heels of the dismissal Order made on the 18th June 2018 unless the applicant is serious in pursuing this matter. By that action he has demonstrated that he is.

As I conclude, the only thing that this court must express its deprecation for is the conduct of advocates who appear at the hearing of a notice to show cause virtually empty handed even when the evidence of a good reason to spare the suit from dismissal may exists, and who hope to convince a court to spare their client’s suit or other proceeding from dismissal by alluding from the bar to matters that would have been best framed in an affidavit sworn either by themselves or their clients. It would not have been proper for this court, for example to admit as gospel truth the averments relating to consent as alluded to by the applicant’s counsel in the absence of the 1st 2nd and 3rd respondent’s counsel, who now disputes such consent in his sworn affidavit. Such proceedings may end up embarrassing the court and some parties later on.

In view of what I had stated much earlier in this ruling however, I find that it is in the interests of justice that the Order dismissing the application dated 16th February 2016 which Order was made on the 18th June 2018 be vacated. The same is hereby vacated and the applicant is also granted liberty to set down his application dated 16th February 2016 for hearing within 14 days of this Order.

Each party shall bear its own costs of this application.

Dated, and signed at Kitale on this 1st day of August 2018.

MWANGI NJOROGE

JUDGE

ENVIRONMENT AND LAND COURT, KITALE

Delivered at Meru on this 29th day of August, 2018 in open court in the presence of:

CarlPeters Mbaabu for interested party

Mr. Mutunga for the exparte applicant

Mr. Kiongo for respondents

C/A Mutua

MWANGI NJOROGE

JUDGE

ENVIRONMENT AND LAND COURT, KITALE.