[2016] KEELC 372 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NYERI

ELC CASE NO. 119 OF 2013 (O.S)

TARCASIO NYAGA GICHUKI & 5 OTHERS(Suing on behalf and as officials of Mathari

Villagers Self Help Project’s Membership)...................................................APPLICANTS

-VERSUS-

THE REGISTERED TRUSTEES CATHOLIC ARCHDIOCESE OF NYERI.........RESPONDENT

RULING

Introduction

1. This ruling is in respect of the notice of motion dated 15th February, 2016 where the Registered Trustees of Catholic Archdiocese of Nyeri, hereinafter called the applicants, seek orders that:-

a) The application be certified urgent and as such deserving to be heardex partein the first instance;

b) Pending the inter partes hearing and determination of the application, the court be pleased to vary, set aside and/or stay the proceedings of 29th June 2015 and any other consequential orders;

c) Directions or orders concerning the applicants’ application dated 25th March 2015.

d) In alternative to the foregoing, the applicant seeks leave to recall the plaintiff’s witnesses for the purposes of cross-examination.

2. The application is premised on the grounds that the applicants were neither invited nor served with a hearing notice as by law required; that it is just and equitable to set aside the proceedings of 29th June, 2015 and any other consequential orders and that no prejudice will be occasioned on the respondents’ if the orders sought are granted.

3. The application is supported by the affidavit of the applicant’s legal manager, Fr. David Mutahi, in which the grounds on the face of the application are reiterated.

4. The application is opposed on the grounds that the applicant was ably represented by counsel and that the matter was fixed for hearing by consent of the advocates of the parties.

5. Terming the averments in the affidavits sworn in support of the application false and misleading, the respondents urge the court to admonish the deponents of the affidavits sworn in support of the application herein for shamelessly misleading the court.

6. It is contended that the application dated 25th March, 2015 was spent when the then presiding judge got transferred.

7. It is further contended that the application is dilatory, a delaying tactic and an abuse of the court process.

8. When the matter came up for hearing, counsel for the applicant maintained that he had neither instructed Mr. Ng’ang’a to hold his brief on 25th March, 2015 nor given him instructions to withdraw his applications. He explained that he failed to attend court when the matter came up for hearing because he was not served with a hearing notice.

9. Terming the proceedings of 25th March, 2016 a nullity, counsel for the applicants, contended that Mr. Ng’ang’a must have colluded with the respondent’s counsel to withdraw his applications.

10. Arguing that the ex parte proceedings have caused the defendant a lot of hardship, Mr. Mugambi urged the court to set a side the proceedings.

11. Counsel for the respondents’ Mr. Karweru, made reference to Sections 1A, 1B and 3A of the Civil Procedure Act and submitted that under those Sections of the law, advocates have a duty to aid the court dispense justice to the parties by telling the truth. He reiterated the respondents’ contention that applicants’ counsel was aware of all hearing dates in this matter.

12. Terming the contention by applicant’s counsel that he had not sent any advocate to hold his brief on the date in issue false and misleading, Mr. Karweru pointed out that at the close of the respondents’ case, the applicant’s had sent counsel ( Mr. Gori) to hold his brief.

13. Mr. Karweru also submitted that the applicants have not satisfied the conditions for setting aside a consent order.

14. Mr. Karweru also took issue with the conduct of the applicant’s counsel of casting aspersions on another counsel without giving him an opportunity to be heard on the allegations leveled against him.

15. The foregoing notwithstanding, he told the court that the respondent is agreeable to re-opening of the case for cross-examination of the respondents’ witnesses on condition that the applicants pay them throw away costs.

16. In a rejoinder, counsel for the applicant admitted having sent Mr. Gori to hold his brief but contended that his instructions were that the matter should not proceed.

17. Concerning the offer by the respondents’ counsel to have the respondent’s case-opened with a view of cross- examination of the respondents’ witness on the aforementioned condition, he told the court that he is not agreeable to the offer because it is calculated at armtwisting his client.

Analysis and determination

18. Whereas counsel for the applicant contends that he had not send Mr. Ng’ang’a to hold his brief, the court’s record shows that when this suit was called for hearing on 25th March, 2015, Mr. Ng’ang’a was holding brief for the applicant’s counsel. On that day, the advocates of the parties to this suit recorded a consent in the following terms:-

“By consent the application dated 23/7/2014 is marked as withdrawn. Costs will be on the cause.

Hearing of the O.S on 29/6/2015. ”

19. When the matter came up for hearing on 29th June, 2015, counsel for the applicant was not present. The court, upon confirming that the defendant was represented by counsel when the matter was fixed for hearing, allowed the matter to proceed in the absence of the applicant’s counsel.

20. The court’s record further shows that the applicant was represented by Counsel, Mr. Gori, when the matter came up for hearing. On that day, Mr. Gori, who walked in as the respondents’ witness was wrapping up the respondents’ case, addressed the court as follows:-

“I have been instructed to hold brief for Mr. Mugambi. This court had given orders in Petition No. 15 of 2015 that nothing should happen to this land until that petition is heard.”

21. I have endevoured to reproduce the above facts concerning this case because they, in my view, tell a different story from that advanced by counsel for the applicant. For instance, whereas counsel for the applicant contends that he did not attend court because he was not notified of the hearing date or served with a hearing date, the court record shows that he sent counsel to hold his brief. In my view, the fact that the applicant’s counsel sent an advocate to hold his brief negates his argument that he was not aware or served with the hearing notice. The only reasonable conclusion that can be reached from the fact that he sent counsel to represent him is that he was aware of the hearing date.

22. With regard to the contention by the applicant’s counsel that he had neither sent Mr. Ng’ang’a to hold his brief nor instructed him to compromise his applications, I find the said allegations and the contention that the said counsel must have colluded with the respondents’ counsel to withdraw his applications to be unsubstantiated.

23. What arises from the above cited facts concerning the proceedings conducted in this matter is that the applicant was at all times material to this application represented by counsel.

24. With regard to the prayer for directions concerning the application dated 25th March, 2015, having found the claim by the applicant’s counsel that he had not instructed Mr. Ng’ang’a to hold his brief and to compromise his application on his behalf unsubstantiated, I find and hold that the said application is none existent, the same having been comprised by consent of the parties to the suit.

25. The upshot of the foregoing is that the applicants have not made up a case for being granted the orders sought. The foregoing determination notwithstanding, as counsel for the respondent is agreeable to re-opening of the case for cross-examination of the respondents’ witness, I allow the application in terms of prayer 4, on condition that the applicants shall pay the respondent’s throw away costs of Kshs. 10,000 within 21 days from the date of this ruling.

26. Should the applicants fails to comply with the order of costs within the time herein stipulated, the application shall stand automatically dismissed with costs to the respondents at the expiry of the time herein intimated.

Orders accordingly.

Dated, signed and delivered at Nyeri this 1st day of November, 2016.

L N WAITHAKA

JUDGE

In the presence of:

Mr. Kamweru for the plaintiff/respondent

N/A for the defendant/applicants

Court assistant - Lydia