Faustino Njeru Njoka & Francis Njeru Nyaga v Rugano Nthiga,Mwireca Kiarirwa,Njoka Konji,Njeru Ngicuva,Mugo Nyaga Njeru,Justus Njeru Ngirigacha,Silas Njiru Nyaga,Njue Mucendu Ngicuva,Gibson Njue Ngirigacha,John Mati Nyaga,Justus Njuki Nyaga,Benjamin Kithumbu Kambelo,Pheanas Kagane,Muturi Phenes Kagane,Titus Njeru Kagane,Nyaga Nginyiro,Evans Matheri Igogo (Legal Representative of Stephene Igogo Matheri,Samuel Mutitu Nduma & Job Kibet T. Kimey;Stephene Igogo Matheri,Sospeter Kithumbu Murangiri & Kimunye Tea Factory Company Ltd (Interested Parties) [2019] KEELC 617 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT EMBU

E.L.C. CASE NO. 71A OF 2014 (O.S.)

(FORMERLY ELC KERUGOYA NO. 47 OF 2012 (O.S.)

(FORMERLY EMBU H.C. CIVIL CASE NO. 36 OF 2007 (O.S.)

AND

IN THE MATTER OF PARCELS OF LAND

MBEERE/MBITA/2088, 2089, 2090, 2094, 2171, 2200,

2204, 2205, 2298, 3775 AND 3777

FAUSTINO NJERU NJOKA..............................................................1ST APPLICANT

FRANCIS NJERU NYAGA................................................................2ND APPLICANT

VERSUS

RUGANO NTHIGA...........................................................................1ST RESPONDENT

MWIRECAKIARIRWA..................................................................2ND RESPONDENT

NJOKA KONJI.................................................................................3RD RESPONDENT

NJERU NGICUVA............................................................................4TH RESPONDENT

MUGO NYAGA NJERU...................................................................5TH RESPONDENT

JUSTUS NJERU NGIRIGACHA.....................................................6TH RESPONDENT

SILAS NJIRU NYAGA......................................................................7TH RESPONDENT

NJUE MUCENDU NGICUVA..........................................................8TH RESPONDENT

GIBSON NJUE NGIRIGACHA.......................................................9TH RESPONDENT

JOHN MATI NYAGA......................................................................10TH RESPONDENT

JUSTUS NJUKI NYAGA.................................................................11TH RESPONDENT

BENJAMIN KITHUMBU KAMBELO..........................................12TH RESPONDENT

PHEANAS KAGANE.......................................................................13TH RESPONDENT

MUTURI PHENES KAGANE.........................................................14TH RESPONDENT

TITUS NJERU KAGANE.................................................................15TH RESPONDENT

NYAGA NGINYIRO..........................................................................16TH RESPONDENT

EVANS MATHERI IGOGO (Legal representative of

STEPHENE IGOGO MATHERI......................................................17TH RESPONDENT

SAMUEL MUTITU NDUMA............................................................18TH RESPONDENT

JOB KIBET T. KIMEY.......................................................................19TH RESPONDENT

AND

STEPHENE IGOGO MATHERI.............................................1ST INTERESTED PARTY

SOSPETER KITHUMBU MURANGIRI...............................2ND INTERESTED PARTY

KIMUNYE TEA FACTORY COMPANY LTD.....................3RD INTERESTED PARTY

RULING

1. By a notice of motion dated 7th October 2019 brought under Section 3A of the Civil Procedure Act (Cap. 21), Order 10 Rule 11, Order 45 Rule 1 of the Civil Procedure Rules (hereafter the Rules) and all other enabling provisions of the law, the 4th, 6th, 7th, 10th, 12th, & 14th Respondents (hereafter the Concerned Respondents) sought a review and setting aside of the judgement of this court dated and delivered on 26th September 2019.

2. The said application was based upon the grounds set out on the face of the motion and supported by the affidavit sworn by the 14th Respondent on 7th October 2019.  It was contended that the Applicants had either misrepresented facts or failed to disclose certain crucial facts to the court in the proceedings in consequence whereof judgement was entered in their favour.  It was contended that the 1st Applicant was no longer the chairman of Nditi clan (Mbue House) and that the Applicants had misled the court into believing that some of the Respondents were members of Ikandi clan whereas they were, in fact, members of Nditi clan.

3. The 3rd Interested Party filed a replying affidavit sworn by Stacy Jayo who is the advocate on record on its behalf in opposition to the said application.  It was contended that the instant application was designed to derail the conclusion of the matter.  It was further contended that the 3rd Interested Party’s parcel No. Mbeere/Mbita/2087 was excluded from the proceedings vide the originating summons amended on 2nd February 2019 hence it could not be a legitimate subject of litigation herein.

4. The 1st Applicant filed a replying affidavit sworn on 12th November 2019 in opposition to the said application.  It was contended that the said application was frivolous and an abuse of the court process.  It was contended that some of the issues raised by the concerned Respondents were canvassed in their replying affidavit to the amended originating summons hence they were considered by the court before delivery of judgement.  It was further contended that the concerned Respondents had failed to demonstrate any of the grounds for review set out in Order 45 Rule 1 of the Rules.  In particular, it was contended that there was no discovery of any new evidence or matter which could not have been availed to the court before delivery of judgement.

5. When the said application was listed for hearing on 17th October 2019, it was directed that the said application be canvassed through oral submissions on 13th November 2019.  When the application came up for hearing on 13th November 2019 the parties requested to canvass it through written submissions.  Consequently, the parties were granted 7 days to file and exchange their written submissions.  By the time of preparation of the ruling, however, none of the parties had filed their respective submissions.

6. The court has considered the notice of motion dated 7th October 2019, the replying affidavits in opposition thereto as well as the material on record.  The provisions of Order 45 Rule 1 of the Rules on review stipulate a follows:

“(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.”

7. The court has considered the entire material on record in light of the grounds set out in Order 45 Rule 1 of the Rules.  The court is not satisfied that the concerned Respondents have demonstrated any of the grounds for review of a decree known to law.  The court is far from satisfied that the Respondents have demonstrated discovery of any new or important matter or evidence which could not, with due diligence, have been availed during the pendency of the proceedings.  The record shows that they were afforded every opportunity to present their defence to the action.  Moreover, they raised some of the issues such as the Applicants’ authority to prosecute the action on behalf of their clansmen in their response to the originating summons.

8. The court is also far from satisfied that the concerned Respondents have demonstrated that there is any other “sufficient cause” to warrant a review of the judgement and decree in this matter.  The mere fact that some of the Respondents might lose their land cannot be sufficient reason to warrant a review.  If the concerned Respondents are of the view that the court was misled by the Applicants and as a result arrived at an erroneous decision, that may well give them a ground of appeal as opposed to a ground for review.  The court is aware that the action did not proceed ex parte but it was canvassed and determined after all concerned parties were accorded an opportunity of being heard.

9. The upshot of the foregoing is that the court finds no merit in the notice of motion dated 7th October 2019.  Accordingly, the same is hereby dismissed with costs to the Applicants.

10. It is so ordered.

RULING DATED, SIGNED and DELIVERED in open court at EMBU this 21ST DAY of NOVEMBER 2019.

In the presence of Mr. Kamunda for the 2nd Interested Party, Mr. Odhiambo for the 3rd Interested Party, Mr. Mayaka holding brief for Ms. Rose Migwi for the 4th, 6th, 7th, 10th, 11th, 12th & 14th Respondents and in the absence of the rest of the parties.

Court Assistant    Mr. Muinde

Y.M. ANGIMA

JUDGE

21. 11. 19