Caroline Wawira Njeru v Irene Wangari [2021] KEELC 1946 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC  APPEAL NO. 39 OF  2018

CAROLINE WAWIRA NJERU......APPELLANT

VERSUS

IRENE WANGARI........................RESPONDENT

(Being an Appeal  from the Judgment  and/ or Ruling  of the Hon. Omodho  (SRM) delivered  on 6th December  2018 in  the Chief   Magistrates Court  Civil Suit No. 549 of  2013at Thika)

BETWEEN

CAROLINE  WAWIRA NJERU.....PLAINTIFF

VERSUS

IRENE  WANGARI.......................DEFENDANT

JUDGMENT

By a Plaint  dated  12th July  2013, the  Plaintiff ( Appellant) filed this suit against the Defendant ( Respondent) and sought for orders that ;

a.A permanent  Injunction restraining  the Defendant,  her agent or employees servants  from trespassing, constructing  structures  and or threatening the Plaintiff with eviction  from Plot  No. B4 Ruiru Block 126.

b.  Costs of this suit

c.  Interest  on ( a) and (b)  above.

In her statement for Claim the Plaintiff ( Appellant) averred that she is the owner of the suit property vide  Wawage  Investment  Company, share Certificate  No. 276  and that she has built a house on the said suit property where she lives with her family. That in the year 2013, the Defendant (Respondent) trespassed  on Plot  No. B4 Ruiru  Block 126 and  threatened her with eviction  and further interfering with her  construction  on the suit property.  That the Defendant ( Respondent ) is a trespasser and continues to interfere with her rights  of use of the said property  and due to the said tortious activities, she is  likely to suffer loss  and or injury as the  threat is imminent  and likely to cause irreparable harm.

The suit was contested and the Defendant(Respondent) filed a Defence and Counter Claim dated 17th September 2013,and denied all the allegations made in the Plaint.  She averred that she is the true proprietor of the suit property having purchased it from Jua Kazi  Women Investment   Company. That the suit is an abuse of the court process  and the Plaintiff ( Appellant)  having filed a similar suit  in Thika ELC  13 of 2013 which was dismissed on 1st  July 2013 .

In her Counter Claim, the Defendant ( Respondent) averred that  on 27th August 1991,  vide receipt  No. 108,  paid Kshs. 15,500/ =for the suit property in Ruiru, which monies were paid  to Jua Kazi  Women Investment group. That on 14th September  1991, the Defendant (Respondent) was issued  with a share certificate  by the group for Plot  No. B4  and on 26th February 2013, she learnt from one  Mr. Koigi  that a third party was undertaking construction on her  plot and upon investigation, it was discovered that the Plaintiff (Appellant)  was constructing on the suit property.

Further that despite the Defendant showing the Plaintiff her original ownership documents, she had refused and or neglected to cease construction on the suit property. That her Claim is for a Permanent injunction, restraining the Plaintiff ( Appellant)  from interfering  with the Defendant’s possession  and enjoyment  of the suit land  or dealing with the suit land in any way that is inconsistent  with the Defendant’s proprietary rights.

The matter proceeded by way of viva voce evidence, wherein the Plaintiff (Appellant) called 3 witnesses and the Defendant ( Respondent) did not call any witness.

PLAINTIFF’S CASE

PW 1 Caroline Waweru  testified that she bought the suit property from  Catherine  Kaguongo,  and upon purchase they entered into a  sale agreement dated 2nd February 2012, for a consideration of Kshs.600,000/=, She produced the sale agreement as Exhibit 1, Share Certificate  by Wawage Investment as Exhibit  2, receipt for transfer exhibit 3. That she occupied the land and  she has built some properties  to which she produced   as Exhibit 5. That she wants the Court to stop the Defendant from interfering with her land. She produced the beacon Certificate as Exhibit No. 6.

That she took possession immediately upon payment. Further  that  she bought the suit property fromCatherine and not Wawage.

PW2 Catherine Wanjiku  Kaguongotestified that she sold the suit property to the Plaintiff and that the Plaintiff paid Kshs. 600,000/= upon which they transferred the suit property. That transfer is done at Wawage Investment Company. Further that she has two other plots and she does not have a title for her property is. That there is a case between the Wawage Directorsand the seller  and the registered owner is  Francis  Wakahuliand the property is 26 acres.

That she never worked at Wawage. Further that she bought the property in 2004from Mikjos  and Wawage bought as a Company as they took over from Mikjos. That she sold it in 2013 and she as not aware of another owner before 2004.

PW3 Francis  Nguru Ngugi  testified that they trade as  Wawage Investment  Company and that the Plaintiff bought the suit property  and was issued with certificate of shares. That Wawage Investment Company Limited owns  26 acres of  Ruiru Ruiru Block 1 and the same was sold  by Francis Wakahiu,who is yet to transfer the property. That they undertook subdivisions and the property belongs to  Caroline and he  did not know the  Defendant.

After the viva voce evidence, the parties filed their written submissions.  The trial Magistrate held as follows:-

“ The said Ruling  was delivered on 9th October 2015. The Plaintiff  Counsel on  31st March 2016  caused this matter  to be fixed for hearing  at the registry  on 22nd August 2016. Whichever  way angle anyone wishes  to interpret it, this was way after the 90 day deadline . A further perusal of the file  does not show if the said party  sought for time extension  or variation of the Court orders . As such the said order is still in force since there are no orders setting it aside  or reviewing it.

In the circumstances I proceed  to expunge the proceedings  of 30th July  2018  which purported to have  matter heard and set the Defendant free to proceed  as they may wish within the confines of the law.”

The Appellant was aggrieved by the above determination of the Court and Decree thereon and she has sought to challenge the said Judgment through the Memorandum of Appeal dated 17th December 2018. The Appellant sought for the setting aside of the Judgment delivered 6th December 2018  byHon. G. Omodho  Senior Resident Magistrate Thika.

The grounds upon which the Appellant sought for the Appeal to be allowed are;

1. THAT  the Learned Magistrates  erred in Law and in fact  in making a Ruling even though  there was no  Application and or prayers by any party to the suit and/ or  in respect of extraneous  issues that were  not ending before  the trial Court for determination.

2.  THAT  the Learned trial Magistrate erred  in Law and in  fact in making  a Ruling that  the Appellant’s evidence in chief  and cross examination be expunged  from the Court record  on the Court’s own motion  even though the Appellant and Respondent  had both testified  and closed their cases awaiting Judgment.

3.  That the Learned  Magistrate erred in  Laws and in fact  in failing to deliver a Judgment after  the parties had closed their case  and their final  written submissions and directed to appear for Judgment

4.  That the Learned  Magistrate erred in  Law and in fact  in raising extraneous issues  and/ or contravening the spirit  and the letter of Article  164 of the Constitution of Kenya 2010  and Section 1A, 3A and Section 25  of the Civil Procedure  Act and order  21 of the  Civil Procedure Rules .

5. That the Learned  Magistrate  erred in Law and  in fact in demonstrating  open bias against the Appellant  who had a legitimate  expectation of having  a Judgment pronounced upon evidence  and submissions  only for her evidence to be expunged  from the Court’s records on the Court’s own motion.

6. That the Learned  Magistrate  erred in Law and in fact  in pronouncing a ruling  in the absence of the Appellant  and the Respondent  and without notifying both parties  either in open Court or  through a Notice.

The Appeal was canvassed by way  of written submissions and the  Appellant through the Law Firm of   Mugo Moses & Company Advocates  filed her written submissions dated 18th  October 2020, and submitted that  it was her  legitimate  expectation that once a suit is filed,  a Judgment should be pronounced  touching on the prayer  sought in the pleadings. That the Appellant prosecuted her case and called two witnesses, but the Respondent on the other hand did not see the need to prosecute her case.  Further that the Court gave a date  for submission and a further date for  Judgment,  but when the Appellant attended Court  with the expectation  of the Court pronouncing  its Judgment,  but the Court  instead made a Ruling  dated 6th December  2018, as opposed to making a Judgment as  directed.

That the Court dismissed the suit allegedly because   the Appellant did not comply with conditions set for reinstatement of the suit. That the Magistrate erred in dismissing the suit without seeking clarification of the facts since its untrue that the Appellant did not comply with conditions set  by Hon . Onsaringo  for the reinstatement as  the Court did not  give the Appellant  an opportunity to  show the receipt  for payment of costs,  so as to demonstrate that  the Applicant complied.  It was further submitted that the Appellant complied with the Court’s directions of  fixing the matter  for hearing  within 45 days,  as the Appellant  invited  the Respondent  to fix the matter  for hearing on 2 occasions  within the said period of 45 days, but on one occasion  the Court file could not be traced and on another occasion  the fixing date happened to be    an Iddir Fitr a Muslim holiday which could not be foreseen.

Further, that the Respondent did not move the Court  during Pretrial or even before  the hearing  for the suit to be dismissed nor  the proceedings be ex-punged. That equity demands that no party  should be  condemned unheard. As it is against the principles of natural justice  for the Court to dismiss a matter  without giving  the Appellant  an opportunity  to explain whether the conditions set had been complied. It was therefore their submissions that   the confusion caused can only be cleared if the Court orders that the suit be heard   de novo  so that the disputes  lingering can come to rest.

The Respondent filed her written submissions  dated 17th December 2020 and submitted  that the cardinal principle  of equity is ‘he  who comes to equity  must come with clean hands’. That the principles  for reinstatement of Thika  MELC  549 of 2013,  were never met,  but the Appellant still moved the Court  by fixing the date for hearing. It was submitted that justice is to both  the Appellant and the Respondent  as the Appellant has been  in possession of the suit property  which is the subject matter of this suit    to the detriment of the Respondent .

This Court recognizes that it neither saw nor heard the witnesses and must therefore give allowance to that. The Court has also carefully considered the findings of the trial court, the submissions by the Counsels and finds as follows;-

As this is a first appeal, it is the Court’s duty to analyze and re-assess the evidence on record and reach its own independent decision in the matter as provided by Section 78of theCivil Procedure Act. See the case of Selle v Associated Motor Boat Co. [1968] EA 123 where the Court held that;

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan(1955), 22 E. A. C. A. 270).

Further as the Court determines this Appeal, it takes into account that it will only interfere with the discretion of the trial Court where it is shown that the said discretion was exercised contrary to the law or that the trial Magistrate misapprehended the applicable law and failed to take into account a relevant factor or took into account an irrelevant factor or that on the facts and law as known, the decision is plainly wrong. See the case of Ocean Freight Shipping Co. Ltd ….Vs…. Oakdale Commodities Ltd(1997)eKLR, Civil App.No.198  of 1995,where the Court held that:-

“This is of course not an appeal to us from the decision of the single Judge. The discretion given by Rule 4 is exercised on behalf of the court by a single Judge and for a full bench to interfere with the exercise of the discretion, it must be shown that the discretion was exercised contrary to law, i.e. that the single Judge misapprehended the applicable law, or that he failed to take into account a relevant factor, or took into account an irrelevant one or that on the facts and the law as they are known, the decision is plainly wrong”.

The Court has carefully read  and considered the written submissions by the parties, the Memorandum of  Appeal , the evidence adduced before the trial court, the  Ruling and Judgment delivered by the  trial Court and the relevant provisions of law and finds the issue for determination  is whether the Appeal is merited.

For the Court to determine whether or not the Appeal is merited, it ought to first determine whether the  trial court was justified in  expunging the  proceedings of 30th July 2018, in which the  Appellant  had given her evidence  and called other witnesses to testify.

In expunging  the  said proceedings of  30th July 2018,that purported to have the matter heard,  the Court noted that  in a Ruling dated 23rd June 2015, Hon. Onsaringo  made a Ruling in which the Court   allowed the Appellant’s Application and in allowing the same  the Appellant was given conditions in which  amongst them   there was a time line of 90 dayswithin which the Appellant ought to have fixed the matter for hearing, failure to which the matter stands dismissed.

The Court has gone through the Court’s proceedings and it is not in doubt that indeed on the 9th of October 2015, the Court allowed the  Appellant’s Application seeking to reinstate  the suit and in the same breath, the Court  gave a rider that the  same ought to have been fixed for hearing within 90 days  failure to which the same stands dismissed.

The  Proceedings  produced in this Court both in the lower Court’s file and in the  Record of Appeal produced as evidence contain proceedings for  9th October 2015, and the next date is 16th May 2018. Indeed from the  9th  October 2015, the time within which the Appellant ought to have had the matter fixed for hearing lapsed  between  January of February 2016, thereabout. This matter was fixed for hearing  for  30th July 2018,  which date was way beyond the90 days.  The Appellant in his Record of Appeal has produced  an Invitation to fix the matter for hearing dated 16th March   2016. There is no doubt that at that time  the 90 days had passed and automatically the suit had therefore been dismissed.

The Appellant has faulted the trial Court for failing to  give  her an opportunity to be heard as there were instances in which she had sought to fix the matter for hearing but she was unable to do so as  either the Court file could not be found  or it was a Public holiday. However no such invitation has been produced before Court. Even so, it is the Court’s Considered view that  if time had run out, the Appellant had an obligation to seek for in  extension of time beyond the 90 days  as the suit stands dismissed  automatically  upon  the lapse of the 90 days. See the case of Moses Mwangi Kimari …Vs… Shammi Kanjirapprambil Thomas & 2 others [2020] eKLR where the Court held that;-

“The appellant does not dispute non-compliance with the court’s conditional orders of 8th November, 2012. He however justified his default before the trial court and now before this court on appeal on the basis of the grounds advanced as already highlighted above and which grounds were rejected by the trial court, reasoning that the appellant ought to have applied for extension of time within which to comply before seeking leave of court to re-amend.

We agree with the trial court's reasoning that although the explanations given by the appellant as reason for non-compliance with the orders of 8th November, 2012 were no doubt plausible and were also directed at the right forum, they ought to have formed basis for seeking extension of time within which to comply and upon such extension of time within which to comply being granted when the appellant could have sought leave to re-amend. As already alluded to above the appellant does not dispute non-compliance with conditional orders issued on 8th November, 2012. His complaint on appeal is that his non-compliance with those orders notwithstanding, he was entitled to a merit pronouncement on his application for leave to re-amend the plaint and that the court's failure to so pronounce itself on the said application for leave to re-amend amounted to a violation to his right to a fair hearing, especially when there was no demonstration of any prejudice likely to be suffered by the Respondents if the court were to exercise its discretion first of all to sustain his suit and then allow him to re-amend the plaint and have it also heard on merit.”

Given that by the time the matter was being heard, the  matter had already been dismissed and the Court had become functus officio and could no longer deal with the same, there are only limited roles the  Court could undertake  after a final determination had been made  and could not  revisit the decision on a merit base. Having the same heard  and a judgment entered , it would only mean that the  same was being heard on a merit base, which  jurisdiction the Court did not have. See the case of Brian Muchiri Waihenya…Vs…Jubilee Hauliers Ltd & another; Geminia Insurance Co. Ltd (Interested Party) [2018] eKLR where the Court held that

“So would this court be in order to hear the applicants application? Is this court barred from doing so by the principle that it is functus officio? The doctrine of functus officio was well stated by the Court of Appeal in Telcom Kenya Ltd -s- John Ochanda (suing on his behalf and on behalf of 996 former Employees of Telcom Kenya Ltd. (2014 e KLR that

“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon--

The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch.D 88.  The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division.  The rule applied only after the formal judgment had  been drawn up, issued and entered, and was subject to two exceptions.---”

23. I agree with the applicants submission that the doctrine does not bar a court from entertaining a case it has already decided but is so barred from revisiting the matter in a merit-based re-engagement with the case once final judgment has been entered and a decree issued, meaning procedural interlocutory applications only.

24.  It is plain and clear that this court having pronounced the final judgment and a decree drawn, being asked to re-engage itself and to interrogate whether  or not the applicant ought to be enjoined in the suit at the late hour which is already pending before the Court of Appeal would in my very considered view be against the law and laid down principles of functus officio.

The Appellant having failed to seek extension of time beyond the90 days, means that  the  suit  stood dismissed on the lapse of the 90 daysperiod and the Appellant having fixed a date for hearing  after the matter had been dismissed, then  any   action undertaken after the matter  had been dismissed only means the same isnull and void. Consequently, the Court finds no reason to upset the decision by the trial Court as the proceedings ought to have been  expunged  and therefore the Court finds the Appeal  is not merited.

Having now carefully re-evaluated and re-assessed the available evidence before the trial court, and the Memorandum of Appeal together with the written submissions, the Court finds that the trial Magistrate arrived at a proper determination and this Court finds no reason to upset the said determination.

The upshot of the foregoing is that the Appellant’s Appeal is found not merited and consequently the said Appeal is disallowed entirely and the Judgment and Decree of the trial court is upheld.

On the issue of costs, the Court finds the same is granted at the discretion of the court. Given the circumstances of the case, the Court directs that each party to bear its own costs on this Appeal.

It is so ordered.

DATED, SIGNEDAND DELIVERED AT THIKA THIS 24TH DAY OF SEPTEMBER, 2021

L. GACHERU

JUDGE

Court Assistant – Lucy