[2022] KEELC 334 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 52 OF 2018

WANJIKU MWAURA ...................................PLAINTIFF

=VERSUS=

RUTH WAMBUI KEIGI ........................... DEFENDANT

RULING

1. This court [Gacheru J] rendered a judgment in this suit on 30/7/2020. She allowed the plaintiff’s claim in the following terms:

a) An order be and is hereby issued directing the Registrar of Lands in Kiambu Lands Office to rectify the register by cancelling the registration in respect of Parcel No. Komothai /Kiratina/1060, currently registered in the name of the defendant.

b) An order be and is hereby issued directing the Registrar of Lands, Kiambu Lands Registry, to rectify the register by cancelling the registration in respect of Parcel No. Ruiru/ Ruiru East 3/308, currently registered in the name of the Plaintiff.

2. Subsequently, the defendant brought a notice of motion dated 11/8/2020, seeking an order of stay of execution pending the hearing and determination of an intended appeal. The court [Gacheru J] heard and disposed the application through a ruling dated 25/3/2021 in the following terms:

“Having now carefully considered the instant notice of motion application dated 11/8/2020, the court finds it merited and the same is allowed entirely with costs being in the cause. The court further orders the defendant/ applicant to deposit Kshs 200,000/= as security for costs.”

3. By October 2021, the defendant had not deposited the money which she was ordered to deposit in court. Further, the defendant had not filed the record of appeal, hence the intended appeal had not been disposed by the Court of Appeal. Consequently, on or about 29/10/2021, the plaintiff brought a notice of motion dated 25/10/2021, seeking the following orders:

(i) Spent

(ii) Pending the hearing of this application, leave be granted for the firm of Kilonzo & Co Advocates to come on record in place of Matemu Katasi & Associates Advocates per the consent dated 17/9/2021 and filed herewith.

(iii) The operation of the Ruling and Order dated 25/3/2021 be stayed pending the hearing of this application.

(iv) The order of the court dated 13/6/2018 granting interim stay of execution pending the hearing and determination of the intended appeal be vacated.

(v) Upon vacation of the order, this court be pleased to direct the Registrar, Kiambu Lands Registry, to reissue Title No Komothai/Kiratina/1060 in the name of the plaintiff for a just and conclusive determination of the matter in light of the judgment and decree herein dated 30/7/2020.

(vi) That the costs of this application be awarded to the applicant.

4. The above notice of motion dated 25/10/2021 is the subject of this ruling. It was supported by the plaintiff’s affidavit sworn on 25/10/2021. She deposed that while granting the order of stay, the court did not give timelines in relation to the money that the defendant was ordered to deposit in court. She contended that she wanted to enjoy the fruits of her judgment but this was not possible owing to the stay order whose condition the defendant had failed to fulfil.

5. The application was canvassed through written submissions dated 6/1/2022 filed through the firm of Kilonzo & Co Advocates. Counsel for the plaintiff identified the following as the two issues falling for determination in the application: (i) Whether the order of stay should be varied and/or vacated; and (ii) Whether the court should issue an order directing the Land Registrar to re-issue Title Number Komothai/Kiratina/1060 in the name of the plaintiff.

6. On whether the order of stay should be varied and/or vacated, counsel for the plaintiff submitted that the stay order was conditional and the defendant ought not to choose how to satisfy the condition. Counsel argued that the defendant’s failure to satisfy the condition amounted to impunity and derogation from the court order. Counsel added that the condition was part of the stay order and the beneficiary of the stay order lost the right to enjoy the stay order once she breached the condition by failing to deposit in court the sum of Kshs 200,000.

7. On whether the court should issue an order directing the Land Registrar to re-issue Title Number Komothai/Kiratina/1060 in the name of the plaintiff, counsel for the plaintiff submitted that in her response to the application, the defendant did not contest the plea. Counsel added that the court’s reasoning in the judgment dated 30/7/2020 was that the purported agreement between the parties to this suit was void ab initio and therefore the transaction had no effect. Counsel contended that the parties were, in the circumstances, taken back to their respective original positions prior to the contract. Counsel argued that, the Registrar having been ordered to cancel the title relating to Parcel No. Komothai/Kiratina/1060 held in the name of the defendant and the title relating to Parcel No. Ruiru/Ruiru East 3/308 held in the name of the plaintiff, fresh corresponding titles were to be issued in the names of the plaintiff and the defendant respectively. Counsel urged the court to grant the plea.

8. The defendant opposed the application through a replying affidavit sworn on 2/12/2021. She deposed that the plaintiff’s advocates had failed to comply with the law relating to change of advocates post-judgment, contending that the advocates failed to obtain the consent of the outgoing advocates. She added that her advocates managed to obtain copies of the proceedings on 27/9/2021 but had not managed to obtain a certificate of delay from the court. She contended that the delay in filing the record of appeal was caused by the Court Registry which had failed to avail to her the certificate of delay. She further deposed that whereas the court ordered her to deposit money in court, it did not give timelines within which the money was to be deposited, hence the applicant had no basis for claiming that she had enjoyed the interim order in perpetuity. She added that she was ready and willing to file the record of appeal and deposit the money in court within a reasonable time immediately after the certificate of delay is issued.

9. In addition, the defendant opposed the application through written submissions dated 17/1/2022, filed through the firm of Laichena Mugambi & Ayieko Advocates. Counsel identified the following as the four issues falling for determination in the application: (i) Whether the firm of M/s Kilonzo & Co Advocatesare properly on record; (ii) Whether the late filing of the record of appeal was deliberate; (iii) Whether the court should discharge the stay order issued on 25/3/2021; and Whether the court should review the ruling delivered on 25/3/2021.

10. On whether the firm of M/s Kilonzo & Company Advocates are properly on record, counsel submitted that the said firm came on record through a consent attached to the application. Counsel contended that the said consent is invalid because it does not have a stamp of the previous advocates and it does not show the identity of the person who signed it. Counsel contended that the plaintiff had failed to comply with the requirements of Order 9 rule 9 of the Civil Procedure Rules.

11. On whether the late filing of the appeal is deliberate, counsel submitted that the plaintiff had faced hurdles in filing the record of appeal due to administrative challenges on part of the Court Registry, adding that the notice of appeal was filed on time. Counsel contended that it was a requirement that the record of appeal be filed together with the certificate of delay.

12. On whether the court should discharge the stay order, counsel argued that the defendant had demonstrated that she had not been indolent, and that she was ready and willing to file the appeal and deposit the money in court within reasonable time immediately after the certificate of delay is issued. On whether the ruling rendered on 25/3/2021 should be reviewed, counsel submitted that the plaintiff had not satisfied the requirements of Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, hence there was no basis for reviewing the ruling.

13. I have considered the application dated 25/10/2021, the response to the application, and the parties’ respective submissions. I have also considered the relevant legal frameworks and jurisprudence. Three issues fall for determination in the application. The first issue is whether the applicant has contravened the law relating to change of advocates post-judgment, and if so, whether that renders the instant application fatally incompetent. The second issue is whether the stay order granted on 25/3/2021 should be vacated and/or reviewed owing to breach by the defendant. The third issue is whether enforcement of the judgment in this suit should ensue in terms of issuance of titles to align the registration of the two parcels of land with the judgment of the court. I will make brief sequential pronouncements on the three issues.

14. The first issue is whether the applicant has contravened the law relating to change of advocates post-judgment, and if so, whether the breach renders the present application fatally incompetent. The law on change of advocates post-judgment is contained in Order 9 rule 9 of the Civil Procedure Rules which provides as follows:

“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—

(a) upon an application with notice to all the parties; or

(b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”

15. My understanding of the above framework is that there are two routes through which a party to a suit may effect a change of advocates post-judgment. One route is through an application filed in the suit and served on all the parties. The second route is by filing a consent executed by the outgoing advocates and the incoming advocates. Both routes require that an order of the court be procured.

16. In the present application, the plaintiff elected to pray for leave for change of advocates in the application. She exhibited a copy of the consent which the outgoing advocates had executed. On 1/11/2021, the application was placed before the Duty Court and the Duty Court [Eboso J] rendered itself on the application as follows:

“I have considered the notice of motion dated 25/10/2021. I allow prayer 2 which relates to leave to effect change of advocates. The application shall be served for hearing interpartes on 2/12/2021. ”

17. The above order which allowed the plaintiff leave to effect a change of advocates has never been challenged by the outgoing advocates. Similarly the consent which the plaintiff exhibited has never been challenged by the outgoing advocates. In the circumstances, without saying much, it is clear that the plaintiff elected to go for the first option of effecting a change of advocates post-judgment. That was perfectly in tandem with the requirements of the law. It is therefore my finding that the plaintiff has not breached the law relating to change of advocates post-judgment.

18. The second issue is whether the stay order granted on 25/3/2021 should be vacated and/or reviewed owing to breach by the defendant. There is common ground that the stay order granted on 25/3/2021 required the defendant to deposit in court security in the sum of Kshs 200,000. There is also common ground that the defendant has to date not deposited the money in court and has not filed the record of appeal. The explanation tendered by the defendant is twofold: (i) that the order of 25/3/2021 did not provide timelines for depositing the money, hence he is not in breach since he intends to do so once a certificate of delay is issued to him: and (ii) that the delay in filing the record of appeal has been occasioned by the delay on part of the Court Registry in issuing the certificate of delay.

19. I have considered both limbs of the explanation. It is true that the stay order did not contain timelines. It is also true that the defendant sought the stay order on the platform of a certificate of urgency dated 11/8/2020. It cannot, in the circumstances, be that the defendant sought and obtained the stay order on the platform of a certificate of urgency and once she got the stay order, the requirement to comply with the condition therein ceased to be urgent. The defendant has up to this point enjoyed the stay order for one year without complying with the requirement to deposit the money in court. Her contention that she will only deposit the money in court once she is provided with the certificate of delay is a clear illustration of her unwillingness to comply with the requirement. I say so because, provision of the certificate of delay was not a condition in the stay order. Given the above circumstances, the court has no doubt that the defendant has deliberately elected not to comply with the requirements of the stay order. I will in the circumstances give the defendant fifteen (15) days within which to comply with the order of 25/3/2021. In default of compliance, the stay order shall stand vacated automatically.

20. The last issue is whether the judgment of the court should be enforced through issuance of titles in tandem with the reasoning and findings in the judgment of the court. The view I take on this issue is that, there is a stay order in place. At the time of granting the stay order, the court did not deem it necessary to frame the stay order in a way that would have allowed enforcement of the judgment but at the same time preserve the suit properties for a specified period pending the hearing and disposal of the appeal. In the circumstances, it is premature to seek enforcement orders in the above terms while the stay order is still in force. I will let the existing stay order remain in force subject to compliance by the defendant.

21. In the end, the plaintiff’s notice of motion dated 25/10/2021 is disposed in the following terms:

a) The defendant shall deposit in court the sum of Kshs 200,000 as ordered by the court on 25/3/2021 within fifteen (15) days from today. In default, the stay order granted on 25/3/2021 shall stand vacated automatically.

b) In default of compliance with order (a) above, the judgment of the court shall be enforced and the Land Registrar - Kiambu Land Registry, shall proceed to issue a title in the name of the plaintiff, relating to parcel number Komothai/Kiratina/1060.

C Subject to compliance with order (a) above, the Deputy Registrar of this court shall forthwith issue a certificate of delay to the defendant.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 24TH DAY OF MARCH 2022

B M EBOSO

JUDGE

In the presence of: -

Mr Mapesa for the Plaintiff/Applicant

Ms Mutinda for the Defendant

Court Assistant: Lucy Muthoni