[2020] KEELC 960 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET

E & L MISC. APPLICATION NO. 9 OF 2019

REPUBLIC…………………………………………………………APPLICANT

VERSUS

THE CHAIRMAN KAPSARET LAND

DISPUTES TRIBUNAL…………………………..……….1ST RESPONDENT

SIMON K. A. BII………………………………………….2ND RESPONDENT

BENEDETA JEPKEMOI KIPTUM…….……………….3RD RESPONDENT

DANSON CHEMJOR KIRUI…………………………....4TH RESPONDENT

JAMES K. CHEPKONGA………………………………..5TH RESPONDENT

BENJAMIN MALAKWEN RUTO……………………....6TH RESPONDENT

AND

JOSEPH KIRUIYOT SITIENEI

JOHN KIBET KWAMBAI

LAWRENCE KITE CHEMUSTO

KIMWETICH ARAP CHOGE

MARTIN CHERONO CHEPTARUS…………....EX-PARTE APPLICANTS

RULING

[NOTICE OF MOTION DATED 1ST APRIL, 2019]

1. The Ex-parte Applicants moved the Court through the Notice of Motion dated the 1st April, 2019 seeking for extension of the 21 days that was allowed to file the substantive motion by seven (7) days or such period as the Court may direct. They also pray for costs. The application is based on the sixteen (16) grounds on its face and is supported by the affidavit sworn by Joseph Kiruiyot Sitienei on the 1st April, 2019. The Exparte Applicants’ case is that upon the court granting them leave to file the substantive motion on 16th September 2003, their former advocate inadvertently and erroneously filed Eldoret ELC No. 141”A” of 2012 [formerly Eldoret Hccc No. 31 of 2004] through a Plaint that was dismissed for being res judicata through the judgment of 31st January, 2019 in view of the existence of the Land Disputes Tribunal award and judgment in Eldoret CMCC No. 8 of 2003, which has not been challenged or appealed against. That the Exparte Applicants should not be punished for the error committed by their former advocate as they are the registered owners of Karuna/Karuna Block 2 (Karuna)/74, 31 and 177 respectively, and have been in possession since 1979.

2. The application is opposed by the 1st Respondent through the grounds of opposition dated 8th August, 2019 summarized as follows;

(a) That the Motion is incompetent statute barred, devoid of substance, a fishing expedition and unreasonable under the circumstances.

(b) That the Court lacks jurisdiction to entertain the application as it is res judicata in view of Eldoret ELC No. 141”A” of 2012.

(c) That the Respondents stands to be prejudiced as the Land Disputes Tribunal Act, 1990 has since been repealed.

3. The learned Counsel for the Exparte Applicants and 1st Respondent filed their written submissions dated the 13th September, 2019 and 31st October, 2019 respectively.

4. The following are the issues for the Court’s determinations;

(a) Whether the Exparte Applicants have made out a reasonable case for the Court to extend the time for filing the substantive motion.

(b) Whether extension of time sought will cause any prejudice to the Respondents that cannot be compensated with an award of costs.

(c)Who pays the costs of the application?

5. The Court has carefully considered the grounds on the Motion, grounds of opposition, supporting affidavit, written submissions by the two learned Counsel, the superior Court’s decisions cited thereon and come to the following determinations;

(a) That there is no dispute that the Exparte Applicants moved the Court through chamber summons dated the 26th May, 2003 filed in Eldoret Hccc Misc. Application No. 140 of 2003, seeking for among others, leave to apply for an order of certiorari to remove the decision of the 1st Respondent into this court for the purpose of quashing. That the application was heard and granted on the 16th September, 2003 as confirmed by the attached copy of the handwritten proceedings. That however, the order attached appear to have been extracted but not signed by the Deputy Registrar.

(b) That upon the leave to file the substantive motion having been granted on the 16th September 2003, the Exparte Applicants were required by Order 50 Rule 3 of Civil Procedure Rules to file the substantive application (Motion) within 21 (twenty-one) days, as denoted by the use of the words “…the application shall be made within twenty one days…” at sub-rule (1). That the Exparte Applicants have conceded that the substantive application was not filed within the twenty-one (21) days, and none has been filed to-date. They blame their counsel on record then for the failure or delay to do so stating that instead, the Counsel erroneously and inadvertently commenced a new suit through a plaint filed in Eldoret ELC No. 141”A” of 2012 [Formerly Eldoret Hccc Suit No. 31 of 2004]. That the attached plaint is dated the 26th February, 2004 and carries a filing date stamp of 4th March, 2004.

(c) That the twenty-one (21) days within which the Exparte Applicants were expected to have filed the substantive application from the date of the leave, that is 16th September 2003, lapsed on or about 7th October, 2003. That the filing of Eldoret Hccc Suit No. 31 of 2004 [Eldoret ELC No. 141”A” of 2012] on the 4th March, 2004, by the Exparte Applicants as the Plaintiffs, and against the Respondents as Defendants, was an entirely new suit and not the substantive application envisaged in the leave granted on the 16th September, 2003 in this Miscellaneous application. That however, the prayers sought in the suit in the nature of declaratory orders that the Kapseret Land Disputes Tribunal Award over Karuna/Karuna Block 2 (Karuna) 74, 31 and 177, and its adoption in Eldoret Chief Magistrate Land Case No. 8 of 2003, the subdivisions and transfers thereof are null and void ab initio and should be revoked, if they were granted, would have had the same effect of quashing the award and adoption proceeding through the earlier envisaged judicial review proceedings.

(d) That the chamber summons application for leave dated 26th May, 2003 and the Plaint dated 26th February, 2003 had been drawn and filed through the same Counsel, that is M/s Buluma & Company Advocates from the copies attached to the supporting affidavit. That the chamber summons in this matter was supported by the verifying affidavit and supporting affidavit sworn by Joseph Kiruiyot Sitienei sworn on the 4th June, 2003. That the same deponent swore the verifying affidavit filed with the Plaint and sworn on the 26th February, 2004 in ELC No. 141”A” of 2012. That reading through the verifying affidavit filed with the Plaint, there is no doubt that the deponent who was the 1st Plaintiff, and happens to be the 1st Exparte Applicant herein, stated clearly at paragraphs 2 that they had “instructed the firm of M/s Buluma & Company Advocates to sue the Defendants”. That the allegation therefore, that the advocate’s action of filing the suit was inadvertent and erroneous does not appear to have basis as Counsel acted in accordance with the instructions given by the Plaintiffs who are the Exparte Applicants. That the Court can only conclude, for lack of any other explanation being tendered, that the Exparte Applicants had abandoned the judicial review route in favour of filing the suit after obtaining leave on the 16th September, 2003.

(e) That the current application dated and filed on the 1st April, 2019 was filed after two (2) months of the judgment of 31st January, 2019 dismissing the suit in Eldoret ELC No. 141”A” of 2012 [Formerly Eldoret Hccc No. 31 of 2004] in which the Court cited the Court of Appeal case of Florence Nyaboke Machani Vs Mogere Amosi Ombui & 2 Others – Civil Appeal No. 184 of 2011, where the Court stated that;

“…It is trite law that a valid judgment of a court unless overturned by an appellate court remains a judgment of court and is enforceable, the issue of jurisdiction notwithstanding. The plaintiffs had all avenues to impugn the award as well as the judgment. He did nothing. As sarcastically put by Counsel for the Defendants in his submissions, the Plaintiff chose to sleep on his rights like the Alaskan fox which went into hibernation and forgot that winter was over. In the meantime, the 1st Defendant’s rights to the suit premises crystalized. Equity assists the vigilant and not the indolent. The plaintiff has come to court too late in the day and accordingly, the declaratory relief must fail. I doubt even that the remedy of his declaration is available to the plaintiff to impugn a valid court judgment and decree.”

That the court is in agreement with the submissions by the learned Counsel for the 1st Respondent at paragraph 14, that the Exparte Applicants herein are the plaintiffs in Eldoret ELC No. 141”A” of 2012, and the Respondents herein are the Defendants in Eldoret ELC No. 141”A” of 2012. That the subject matter herein is in respect of the decision of the 1st Respondent, which was principally the same subject matter in Eldoret ELC No. 141”A” of 2012. That Eldoret ELC No. 141”A” of 2012 was heard and determined on merit and the suit dismissed by a court of competent jurisdiction. That as the 1st Respondent’s Counsel submitted, “it follows that even if the court was to extend the time for instituting a substantive motion, it will be a futile as the court remains functus officio having conclusively determined the issues meant to be raised by the Motion. Section 7 of Civil Procedure Act estops courts, through res judicata from entertaining matters between the same parties over the same subject already determined by a court of competent jurisdiction.”

(f) That the court definitely has the discretion to entertain an application for extension of time under Order 50 Rule 6 of Civil Procedure Rules “…upon such terms (if any) as the justice of the case may require…” and grant extension in appropriate cases as submitted by Exparte Applicants’ Counsel when he referred to the case of Judicial Review No. 480 of 2016 – Republic Vs Speaker of Nairobi City County Assembly & Another Exparte Evans Kidero [2017] eKLR, which cited the Court of Appeal’s decision in Wilson Osolo Vs John Ojiambo Ochola & The Attorney General Nairobi C. A. No. 6 of 1995. That the court in deciding whether or not to grant an extension must consider whether there is a reasonable reason given for the delay to the satisfaction of the Court; whether there is any prejudice to be suffered by the respondents if extension is granted that cannot be compensated by an award of costs, and whether the application has been brought without undue delay. That the learned Counsel has in their submission at paragraph 9 referred the court to the principles to be considered set out in the Supreme Court of Kenya decision in the case of Nicholas Kiptoo Arap Korir Salat Vs Independent Electoral and Boundaries Commission and 7 Others [2014] eKLR, and taken the position that the Exparte Applicants have failed to explain the delay. That indeed, from the 7th October, 2002 when the twenty-one (21) days lapsed, to 1st April, 2019 when the application for extension of time was filed, a period of over fifteen (15) years had lapsed. That the only attempt of explaining the delay by the Exparte Applicants is their contention that it was an inadvertent and erroneous mistake of their then Counsel who filed another suit through plaint instead of the substantive application. That as already pointed out above, the Eldoret ELC No. 141 “A” of 2012 [Formerly Eldoret Hccc No. 31 of 2004] was not filed until March, 2004 which was already about four (4) months after the lapse of the 21 days. That the Court finds there is no explanation tendered to explain that delay, or the fifteen (15) years delay, in moving the court for extension of time.

(g) That having found as above that contrary to the Exparte Applicants’ claim that the filing of the suit was an inadvertent and erroneous act by their then Counsel, that it was indeed pursuant to their instructions as confirmed by paragraph 2 of the verifying affidavit filed with the Plaint, then the Court finds that the Exparte Applicants have failed to prove that their Counsel was to blame for the failure to file the substantive application within the time as required. That as was observed in the case of Republic Vs Public Procurement Administrative Review Board & Another Exparte Megal Security Systems Ltd/Firefox Kenya Ltd (JV) (2019) eKLR, that every litigant has a duty to ensure that his/her instructions to a counsel are implemented to the letter. That litigants have a duty to check on the progress of their matters and confirm that court directions are being implemented. That litigants cannot derelict their duty to a counsel and later claim innocence when counsel fails to comply with directions of the Court. In those circumstances, the litigant will be as guilty as the counsel. That for a litigant to rely on the rule that the mistake of counsel should not be visited upon the litigant, he/she must show it was a genuine mistake that the litigant had no control over. Such mistakes must be strictly within professional competence of a counsel such as matters of law, procedure and inadvertence, but cannot extend to matters or circumstances that a litigant was aware of or party to. That from the averments and affidavit filed with the plaint in Eldoret ELC No. 141”A” of 2012, the filing of that suit was not an inadvertent or erroneous act by the Counsel but adherence to the instructions given by the Exparte Applicants. The Exparte Applicants were therefore active prayers in the filing of that suit. That they have not exhibited any evidence of any inquiries they made, or correspondence they wrote to their then counsel asking the status of the substantive application that was to be filed after their chamber summons application for leave was granted on the 16th September, 2003. That the Exparte Applicants have inordinately delayed in filing the instant application and granting it would prejudice the Respondents’ case in a way that an award of costs would not suffice as the Land Disputes Tribunal Act No. 18 of 1990, under which the initial proceedings and award were made and adopted, was repealed under Section 31 of the Environment and Land Court Act No. 19 of 2011. That further, from the averments by the Exparte Applicants as Plaintiffs at paragraphs 14, 15 and prayer (b) of the Plaint dated the 26th February, 2004 filed in Eldoret ELC No. 141”A” of 2012, and attached to the supporting affidavit, the Respondents herein who are the Defendants in that suit, had by then had the tribunal award adopted by the lower court and executed through subdivision of the suit properties and transfer to their names. That though the date of the execution has not been disclosed, it must have been before the filing of the said suit on the 4th March, 2004. That from the date of filing of that suit to the date of 1st April, 2019 when the instant application was filed, a period of about fifteen (15) years has lapsed. That sections 1A, 1B and 3A of the Civil Procedure Act Chapter 21 of Laws of Kenya and Articles 23, 47, 50 and 159(2)(b) of the Constitution of Kenya, 2010 requires the court to among others ensure justice is done without delay. That the court finds and holds that it would not be fair and just for the Exparte Applicants, who for all intents and purposes abandoned the judicial review proceedings in 2003 in favour for a suit that was filed in 2004 and finalized in 2019 through dismissal, to turn around and seek to restart the judicial review process that they aborted after the leave was granted on the 16th September, 2003. That to take the Respondents through another court process for the same subject matter would be prejudicial to their defence and for the reasons set out above, an award of costs would not suffice.

(h) That in view of the foregoing, and as the 1st Respondent has participated in defending the application and its hearing, their costs should be paid by the Exparte Applicants.

6. That in view of the findings above, the Motion dated and filed on the 1st April, 2019 is without merit and is dismissed with costs to the 1st Respondent.

Orders accordingly.

Delivered virtually and dated at Eldoret this 21st day of October, 2020.

S. M. KIBUNJA

JUDGE

In the presence of:

Exparte Applicants: Absent.

Respondents: Absent.

Counsel: Mr. Kuria for Respondents.

Court Assistant: Christine

and the Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses.