[2023] KEELC 16560 (KLR)

Suleiman Murunga t/a Simmers Restaurant v Nilister Holding Ltd & 3 others (Environment & Land Case 1549 of 2013) [2023] KEELC 16560 (KLR) (23 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16560 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 1549 of 2013

JO Mboya, J

March 23, 2023

Between

Suleiman Murunga t/a Simmers Restaurant

Applicant

and

Nilister Holding Ltd

1st Respondent

Green Valley Ltd

2nd Respondent

Chief Land Registrar

3rd Respondent

Pimp My Ride

4th Respondent

Ruling

Introduction and Background. 1. The Plaintiff/Applicant herein filed and originated the subject suit in the year 2013 and despite the filing of the suit in the year 2013, the Plaintiff/Applicant has never found it fit, appropriate and expedient to set down the suit for full hearing.

2. Be that as it may, it is imperative to recall that the Plaintiff/Applicant herein had previously filed and lodged an Application dated the 5th March 2018, and in respect of which the Plaintiff/Applicant had sought for, inter-alia, order of mandatory injunction to be granted to the Plaintiff reinstating same into possession of the property known as LR No. 209/918, Simmers Restaurant, Kenyatta Avenue, pending the hearing and determination of the suit.

3. Subsequently, the application dated the 5th March 2018, was heard and disposed of vide Ruling rendered on the 25th February 2019, by the Environment and Land Court (albeit by a separate Judge) and whereupon the said application was declined. For clarity, the limb of the impugned application which sought for mandatory injunction was dismissed.

4. Furthermore, whilst delivering the Ruling under reference, the Honourable court noted and observed that the instant suit was filed in the year 2013 and hence there was need/necessity for the suit to be set down for hearing within the next one month.

5. Despite the foregoing observation by the Honourable court, which should have inspired the listing the suit for hearing on priority basis, the Plaintiff has nevertheless, failed to take precipitate steps towards having the suit heard and disposed of on merits.

6. Instead, the Plaintiff/Applicant has now returned to court with yet another application and in respect of which same is now seeking for Review of the Ruling rendered on the 25th February 2019.

7. For clarity, the Application under reference is dated the 16th November 2022; and same seeks the following reliefsi.That this Honourable court be pleased to review the decision/Ruling of the Honourable Lady Justice K. Bor, delivered at Nairobi on the 25th February 2019 issued on the 3rd April 2019; specifically Order number Six (6).ii.That the court be pleased to grant such other order or further reliefs as it may deem fit and necessary in the circumstance.iii.Costs of the Application be provided for.

8. For coherence, the instant application is premised on various grounds which have been alluded to and enumerated in the body of the application. Besides, the application is further supported by the affidavit of the Plaintiff/Applicant (sic) sworn on an undisclosed date in the month of November 2022.

9. Upon being served with the instant application, the 1st Defendant herein responded thereto by way of a Notice of preliminary objection dated the 30th November 2022. For clarity, counsel for the 1st Defendant/Respondent has contended inter-alia, that the impugned application is fatally defective, incompetent and thus invalid.

10. On the other hand, the 2nd Defendant/Respondent has responded to the instant application by way of an elaborate Replying affidavit sworn by one, Margaret Wairumu Magugu, on the 22nd January 2023 and to which, the deponent has annexed the ruling rendered on the 25th February 2019.

11. Other than the foregoing, it is imperative to state that when the subject matter came up for hearing on the 26th January 2023, the advocates for the respective Parties agreed to canvass and dispose of the application and preliminary objection by way of written submissions.

12. Consequently and In this regard, the Honourable court circumscribed the timelines for the filing and exchange of the written submissions.

13. Nevertheless, it is worthy to underscore that despite time being granted to the Plaintiff/Applicant to file and serve written submissions, same failed and/or neglected to comply with and or adhere to the directions of the court. Consequently, no submissions were ever filed on behalf of the Applicant.

14. On the contrary, both the 1st and 2nd Defendants/Respondents filed their respective submissions. For clarity, the 1st Defendant filed written submissions dated the 28th February 2023, whilst the 2nd Defendant filed submissions dated the 27th February 2023.

Submissions By The Parties a. Applicant’s Submissions 15. Though the Applicant was duly represented by counsel on the 26th January 203, when the matter came up for hearing and when directions were given, same however failed and neglected to file written submission.

16. Be that as it may, the instant application seeks for review of one limb of the orders contained in the Ruling rendered on the 25th February 2019. In this regard, the Honourable court will be still be obliged and obligated to consider the application and the supporting affidavit thereto and thereafter, to determine whether the applicant has met the requisite threshold to warrant the grant of an Order of (sic) review.

b. 1St Respondents Submissions 17. The 1st Respondent herein filed written submission dated 28th February 2023 and in respect of which same has raised, highlighted and amplified two issues for consideration.

18. Firstly, learned counsel for the 1st Respondent has submitted that the impugned application, which has been filed by and on behalf of the Plaintiff/Applicant is fatally defective and thus invalid, insofar as the supporting affidavit does not comply with the provisions of Section 5 of the Oaths and Statutory Declaration Act, Chapter 15 Laws of Kenya.

19. In particular, learned counsel has submitted that the impugned supporting affidavit does not show the date on which same was allegedly commissioned before the commissioner of oaths.

20. Additionally, learned counsel for the Respondent has submitted that in the absence of a date when the impugned supporting affidavit was commissioned, the entire affidavit becomes invalid and thus same is incapable of anchoring the current application.

21. In this regard, learned counsel for the 1st Respondent has therefore implored the Honourable court to strike out and expunge the impugned supporting affidavit and by extension, the current Application.

22. In support of the foregoing submissions, learned counsel for the 1st Respondent has cited and quoted the holding in the case of Equity Group Holding Ltd versus The Commissioner of Domestic Taxes (Civil Appeal E069 and E025 of 2020) (2021) KEHC 25 (KLR) and Re Mwo(Minor) (2021)eKLR.

23. Secondly, learned counsel has submitted that upon the striking out of the impugned supporting affidavit, the current application shall remain bare, without supporting evidence to anchor and/or premises same. In this regard, counsel has therefore added that the application shall be rendered incompetent and thus deserving same being struck out.

24. In a nutshell, learned counsel for the 1st Respondent has therefore implored the Honourable court to find and hold that the instant application is incompetent, defective and invalid and that same be struck out with costs.

c. 2nd Respondent’s Submissions 25. The 2nd Respondent herein filed written submissions dated the 27th of February 2023 and in respect of which same has similarly highlighted and amplified two issues for consideration by the Honourable court.

26. First and foremost, learned counsel for the 2nd Respondent has submitted that the Plaintiff/Applicant has neither met nor satisfied the requisite threshold to warrant the grant and or issuance of the orders of review, either in the manner sought or at all.

27. Furthermore, learned counsel for the 2nd Respondent has contended that the limb of the order which is sought to be reviewed and essentially, which declined to grant the orders of mandatory injunction, was rendered on the 25th February 2019, which is more than 3 years 9 months.

28. Additionally, learned counsel has also submitted that despite the Applicant contending that there is an error and mistake on the face of record, no such error and mistake has been pointed out and alluded to in the entirety of the application beforehand.

29. In any event, Learned Counsel has pointed out that where an application for review is anchored and premised on the ground of error and mistake apparent on the face of record, the Applicant is called upon to demonstrate the existence of such an error or mistake, albeit without seeking to go into the merits of the previous ruling/decision.

30. Be that as it may, learned counsel for the 2nd Respondent has submitted that the Applicant herein has neither established nor shown any such error or mistake. In this regard, counsel has contended that the impugned application is therefore not merited.

31. In support of the foregoing submissions and in particular, as pertains to the circumstances upon which an order of review can issue, learned counsel for the 2nd Respondent has cited and relied on various cases, inter-alia, Hosea Nyadika Mosagwe and 2 Others versus County Government of Nyamira (2022)eKLR, Republic versus Advocates Disciplinary Tribunal Ex-parte Apollo Mboya (2019)eKLR andNyamogo & Nyamogo v Kogo (2001)EA at page 70.

32. Secondly, learned counsel for the 2nd Respondent has submitted that an order of mandatory injunction can be issued at an interlocutory stage but that an applicant seeking such an order must establish the existence of special and exceptional circumstances warranting the issuance of such an order.

33. Additionally, learned counsel has stated that a mandatory injunction would also require a higher proof, slightly beyond the kind of proof required in respect of an application for temporary/ prohibitory injunction.

34. Nevertheless, learned counsel for the 2nd Respondent has submitted that in respect of the instant matter, the Applicant has neither established nor demonstrated the existence of any special or exceptional circumstances that would warrant the grant of an order of mandatory injunction.

35. In support of the submissions that no mandatory injunction can issue and/or be granted in respect of the instant matter, learned counsel for the 2nd Respondent has cited and quoted inter-alia, Kenya Power & Lighting Company versus Samuel Mandere Ogeto (2017)eKLR, Kenya Breweries Ltd & Another versus Washington Keya (2002)eKLR, Bandari Investment Company Ltd versus Martine Chiponda & 139 Others (2022)eKLR and Malier Unissa Karim versus Edward Oluoch Odumbe (2015)eKLR, respectively.

36. Premised on the foregoing, learned counsel has therefore submitted that the Plaintiff/Applicant has neither established nor demonstrated that an order of mandatory injunction is warranted.

37. In a nutshell, counsel for the 2nd Respondent has submitted that the current application is devoid or bereft of merits and hence ought to be dismissed.

Issues For Determination 38. Having reviewed and evaluated the Application dated the 16th November 2022, together with supporting affidavit thereto and having taken into account the responses filed thereto and upon considering the written submissions filed by the 1st and 2nd Respondents, the following issues do arise and are worthy of determination;i.Whether the Applicant herein has met the requisite threshold to warrant the grant of an order of review, either as sought or at all.ii.Whether the Applicant herein is deserving of an order of Mandatory Injunction with a view to re-instating same into the suit property.

Analysis And Determination Issue Number 1. Whether the Applicant herein has met the requisite threshold to warrant the grant of an order of Review, either as sought or at all. 39. It is common ground that the Applicant herein was hitherto a tenant of the 1st Respondent and same was occupying and operating a restaurant on the suit property, namely LR No. 209/918, situate within the City of Nairobi.

40. Furthermore, the Applicant herein contended that same remained a tenant of the 1st Defendant on the suit property up to and including the 31st December 2009, when same contends that the 1st Defendant’s lease with the Government lapsed and/or was extinguished

41. In addition, the Applicant averred that upon the lapse and/or determination of the 1st Defendant’s lease, same (Applicant) applied to be allotted the suit property and that his application was successful and same was thereafter issued with a letter of allotment.

42. On the other hand, the Applicant contended that despite procuring and obtaining a letter of allotment over and in respect of the suit property and despite the fact same had procured and obtained orders of injunction, the 1st and 2nd Respondent conspired by procuring an eviction order from the Magistrates court and thereafter evicting same from the suit property.

43. Nevertheless, the Applicant has added that the orders of eviction which were procured and obtained from the magistrates court by and at the instance of the 1st and 2nd Defendants, were ultimately vacated by the said court.

44. Owing to the fact, that the orders of eviction which lead to his eviction and removal from the suit property have since been vacated, the Applicant herein now contends that there is a basis to warrant review of the ruling rendered on the 25th February 2019.

45. Having reproduced the brief background to the subject matter, it is now appropriate to venture and determine whether indeed the applicant herein is deserving of the orders of Review, either as sought or at all.

46. Firstly, the issue that the Applicant has alluded to both on in the grounds of application and the supporting affidavit, were canvassed and ventilated before Lady Justice K Bor, Judge, who considered same and thereafter rendered the ruling dated the 25th February 2019.

47. In any event, the issues that are now being adverted to by the Applicant were exhaustively dealt with and determined by the Honourable court. Consequently, if the applicant was aggrieved, then the only recourse which was available was to file and mount an appeal.

48. Secondly, it is also not lost on this court that despite the fact that the Applicant herein is seeking review, same has however explicitly pointed out that the learned judge erred in declining to grant the mandatory injunction. In this regard, the gravamen of the Plaintiff’s/ Applicant’s application is that the Learned Judge rendered an erroneous Ruling.

49. To put things into perspective, it is necessary to reproduce two of the critical grounds which the Applicant relies on to procure the orders of Review.

50. For clarity, grounds 2 and 4 are reproduced as hereunder;“2. That the Honourable judge erred in declining to grant mandatory injunction sought by the Plaintiff to evict the Respondents from the suit property even after noting that the latter did not have any title to the property and that the eviction orders that had evicted the Plaintiff from his suit property had been set aside”.

“4. The Honourable court declined to grant a mandatory injunction sought by the Applicant to evict the trespassers and yet there was overwhelming evidence to show that he was indeed the registered owner with propriety interests to the suit land”.

51. From the grounds alluded to, what becomes apparent and so evident is that the Applicant appears to have been aggrieved with and/or dissatisfied with the ruling or a segment of the ruling of the Honourable judge.

52. To the extent that the Applicant herein appears to have been aggrieved and dissatisfied by the impugned ruling, same is now keen to revisit the matter and to persuade this Honourable court to find and hold (sic) that the learned judge who rendered the impugned ruling indeed erred.

53. My understanding of the Applicant’s application is that same is keen to invite this Honourable court to undertake a merit review of the impugned ruling and thereafter to pronounce himself that the learned Judge (sic) indeed erred.

54. To my mind, the entire application mounted by and/or at the instance of the Applicant, is calculated to have this Honourable sit on appeal on the decision of a court of coordinate jurisdiction and thereafter to overrule the said court.

55. Clearly, what the Applicant is seeking is tantamount to inviting anarchy and absurdity into the corridors of justice. For clarity, a Judge cannot endeavor to sit on appeal on the decision of a court of coordinate/concurrent Jurisdiction.

56. Furthermore, if the Applicant was aggrieved with the impugned ruling and same is convinced that the learned judge erred (which I am unable to discern) then it behooved the Applicant to mount and lodge an appeal to the Honourable court of appeal and not otherwise.

57. In this respect, it is imperative to point out that what constitute an error and mistake apparent on the face of record, is separate and distinct, from a claim that the Learned Judge whose ruling/decision is complained of, erred.

58. In this regard, whereas the former can attract review, the latter can only be dealt with and entertained on appeal, subject to the obtaining statutory provisions of the Law, namely, where a Right to Appeal exists.

59. To this end, it is appropriate to reiterate the holding of the Court of Appeal in the case of National Bank of Kenya Ltd versus Ndungu Njau (1997)eKLR, where the court stated and held as hereunder;A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter.Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.

60. Furthermore, the distinction between an error that can attract a review and an erroneous decision (read where the claim is that the judge erred), was re-visited by the Court of Appeal in the case of Nyamogo & Nyamogo Advocates versus Kogo [2001] 1 EA 173, where the court held as hereunder;“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out.An error which as to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.”

61. In view of the foregoing, it is my humble, albeit considered view that issues that color the current application and essentially where it is contended that the learned judge erred, are issues that can only be ventilated and addressed by way of an appeal and not otherwise.

62. Thirdly, there is also the important requirement that a Party desirous to seek for review under the provision of Order 45 Rule 1 of the Civil Procedure Rules, 2010, must also approach the Honourable court without unreasonable or inordinate delay.

63. In this regard, it was incumbent upon the Applicant incumbent upon the Applicant move the Honourable court with the Application for review, timeously and with due promptitude.

64. Be that as it may, it is not lost on this Honourable court that the current application has been filed and/or mounted after a duration of more than a duration of 3 years 9 months from the date of the impugned ruling/decision, was rendered.

65. In this regard, the question that does arise and which this Honourable court must calibrate upon is whether the application has been made and mounted without unreasonable and inordinate delay.

66. To my mind, the length of time and the duration taken prior to the mounting of the current application and which duration has neither been explained nor accounted for, is grossly inordinate.

67. In the circumstance, the instant application is however defeated by the Doctrine of Latches, insofar as the same was made after the lapse of an inordinate and unreasonable duration of time.

68. To this end, the provision of Order 45 Rule 1 of the Civil Procedure Rules, 2010, is succinct and pertinent.

69. For ease of reference, the named provisions are reproduced as hereunder; 1. Application for review of decree or order [Order 45, rule 1. Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed,and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

70. In a nutshell, the Applicant herein, has certainly not satisfied any of the grounds upon which an order of review can issue. Similarly, the application for review is vitiated by unreasonable and inordinate delay prior to and before the filing of same.

Issue Number 2. Whether the Applicant herein is Deserving of an Order of Mandatory Injunction with a view to Reinstating Same into the Suit Property. 71. Other than the limb of the application that sought for review, which has been discussed at the foot of issue number one herein before, the Applicant also sought for an order of mandatory injunction.

72. Be that as it may, it is imperative to recall, restate and reiterate that the Applicant herein had previously sought for an order for mandatory injunction, but which was declined, nay dismissed by this Honourable court (differently constituted).

73. In the course of dismissing the limb of the application touching on the aspect of the mandatory injunction, the learned Judge made several observations, inter-aliaa.That the suit premises which were hitherto being used by the Applicant as a restaurant were pulled down and demolished. In this regard, the judge held that restitution/restoration of the Applicant was therefore not tenable.b.The suit property had since been re-designed and re-developed and currently (at the time of the impugned ruling) there was a modern car wash and parking facilities thereon.c.Thirdly, following the re-design and re-development of the suit property, the 1st Defendant thereafter put in place a new tenant, who was in occupation thereon. In this regard, the Honourable judge took cognizance of the presence of the interested party being the new tenant in situ.d.The Judge also found that the letter of allotment which has (sic) been issued in favor of the Applicant had been withdrawn by the National Land Commission. See paragraph 46 of the ruling.e.The Judge also observed that the Applicant had been evicted from the suit property and a substantial amount of time had lapsed between the eviction and the rendition of the ruling.

74. Premised on the various perspectives, which I have itemized and enumerated in the preceding paragraph, the learned Judge found and held that an order of mandatory injunction was inappropriate and undesirable. Consequently, the learned Judge declined the prayer for Mandatory Injunction.

75. I beg to point out that the various circumstances, which the Learned Judge adverted to and addressed in the body of her elaborate ruling rendered on the 25th February 2019, are still alive and relevant to date.

76. At any rate, it is worthy to recall that the lapse of time has indeed increased and exacerbated to date, to the extent that the duration for which the Applicant has been out of the suit property is now quite prolonged and substantial.

77. Bearing the foregoing in mind, I am now called upon to discern and determine whether the applicant herein has established and demonstrated peculiar and exceptional circumstances to grant or warrant an order of Mandatory injunction.

78. Firstly, it is not lost on the Honourable court that the letter of allotment, which the Applicant herein was relying upon to lay a claim to ownership of the suit property, appears to have been withdrawn and/or rescinded. In this regard, it therefore means that the Applicant may not (I mean, may, being alive to the fact that what is before me is an interlocutory application) be having any legal and legitimate claim to the suit property.

79. In the premises, the question then is before the Applicant’s suit is heard and determined, one way or the other, what would be the basis to warrant reinstatement and restoration of the Applicant to the suit property.

80. In my humble view, the answer to the question posed in the preceding paragraph can only be determined upon the hearing and determination of the main suit.

81. However, prior to and or before the hearing and determination of the main suit, the reinstatement and restoration of the Applicant to the suit property, shall remain a tall order. Clearly, not at this juncture.

82. In any event, it must be noted that an order of mandatory injunction can only issue in clear, rare and peculiar circumstances. Furthermore, even in those circumstances, it behooves the Applicant to really establish and prove that what is beforehand is a clear-cut case, which can be addressed by the court in a summary approach and/or manner.

83. To this end, it is appropriate to restate and reiterate, the holding of the Court of Appeal in the case of Kenya Breweries Ltd versus Washington Okeyo (2002)eKLR, where the court held as hereunder;“The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. para 948 which reads:“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …….. a mandatory injunction will be granted on an interlocutory application”.Also in Locabail International Finance Ltd. V. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:-“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction wa s directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance t hat at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”

84. Recently, the circumstances under which a mandatory injunction can and often do issue, was re-visited by the Court of Appeal in the case of Nation Media Group Ltd versus Harun Mwau & Another (2014)eKLR, where the court stated and observed as hereunder;“We agree with Mr. Mogere that in an application for a mandatory injunction the balance of convenience is not the only principle which an applicant has to satisfy as stated by the learned Judge at page 34 of the ruling. A different and higher standard than that in prohibitory injunctions is required before an interlocutory mandatory injunction is granted. Besides, existence of exceptional and special circumstances must be demonstrated as we have stated, a temporary mandatory injunction can only be granted in exceptional and in the clearest of cases. See Kenya Airports Authority v Paul Njogu Mungai & Others Civil Application No. 29 Of 1997 (ca). As The Court Stated In The Case Of Locabail International Finance Ltd. v Agroexpert & Others [1986] 1 All Er 901, the court has to have “a high degree of assurance that at the trial it would appear that the injunction had rightly been granted…..”.

85. Based on the foregoing analysis, I come to the conclusion that the Applicant herein has neither met nor established the higher threshold that is required of an Applicant seeking an order of mandatory injunction.

86. Without meeting the higher threshold and taking into account (sic) the contention that the Applicant’s (sic) Letter of allotment was rescinded by the National Land Commission, the impugned order of mandatory injunction cannot therefore issue.

Final Disposition 87. Having addressed and calibrated upon the itemized issues, (which were alluded to and enumerated in the body hereof), it is apparent that the application by the Applicant was not only premature, but also misconceived and legally untenable.

88. In the circumstances and without belaboring the point, the Application dated the 16th November 2022, is devoid and bereft of merits. In this regard, same be and is hereby Dismissed with costs to the 1st and 2nd Respondent only.

89. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF MARCH 2023. HON. JUSTICE OGUTTU MBOYAJUDGEIn the Presence of;Benson Court AssistantMr. Amolo and Mr. Oringe Waswa for the Plaintiff/ApplicantMs. Kariuki H/B for Mr. Kinoti for the 1st RespondentMr. Kago for the 2nd RespondentMr. Allan Kamau for the 3rd 5th RespondentN/A for the Interested Party