Gerald Mugambi M’Imaria, Stephen Meeme M’Imaria & Timothy Kimathi M’Imaria v Robert M’Impwi Mungania [2018] KEELC 2328 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC APPEAL NO. 11/2014

GERALD MUGAMBI M’IMARIA.........................1ST APPELLANT

STEPHEN MEEME M’IMARIA...........................2ND APPELLANT

TIMOTHY KIMATHI M’IMARIA.......................3RD APPELLANT

VERSUS

ROBERT M’IMPWI MUNGANIA...............................RESPONDENT

(BEING AN APPEAL OF THE RULING DELIVERED ON 2. 4.2014

BY HON. C.M. MAUNDU – SRM IN MAUA CMCC NO. 100 OF 2007)

JUDGMENT

1. This appeal is in respect of the ruling delivered by C.M Maundu delivered in Maua CMCC No. 100 of 2007.  The facts giving rise to this ruling are that the appellants were the defendants while respondent was the plaintiff in the lower court case.

2. The trial commenced exparte before the trial magistrate on 28. 8.2013 and Judgment was delivered on 4. 11. 2013.

3. Thereafter, appellants (defendants) filed an application dated 11. 12. 2013 seeking orders of stay of execution of the judgment and to set aside the judgment. The main issue for determination was whether defendants were aware of the date of trial.  The trial magistrate ruled that defendants were indeed aware of the date of the trial and proceeded to dismiss their application vide a ruling delivered on 2. 4.2014.  It is this ruling that sparked off the present appeal.

4. In summary the grounds raised in the memorandum of appeal are:

(i) Whether the trial magistrate erred in finding that the application was tainted with procedural flaws.

(ii) Whether the trial magistrate violated the rules of natural justice by condemning the defendants unheard.

Determination

5. I have weighed all the issues raised herein as well as the rival submissions of the parties.

6. Appellants contend that their application was not defective and have cited the case of Magereza Savings Ltd versus Samuel Gachini Wahiu & 881 others (2014) eKLR.

7. The Respondent have submitted at length as to why this appeal is not merited. In particular, the Respondents captured the pertinent issue appertaining to the ruling of 2nd April 2014 where “the magistrate had observed that the applicants were not being candid and that receipt of the subject hearing notice which was annexed to the affidavit of service filed by the plaintiff’s  (Respondent’s) counsel had been acknowledged by the firm of J.M.ISABOKE &COMPANY ADVOCATES who were acting for the defendants”.

8. I find that the trial magistrate property analyzed the facts presented before him.  He noted that the firm of Ms. Mugambi Mbaabu & co. who had filed the application of 1. 12. 2013 on behalf of defendants came on record after judgment had been entered without seeking leave of the court.  I note that in the Magereza case, the court upheld interpretation of order 9 rule 9 of the civil procedure rules. However, the facts of this case are completely different from the Magereza case since in the latter one, the court was dealing with a tussle between two firms of advocates (Oraro & Company advocates and Ratemo Oira & Co. Advocates). Further, in the magereza case, the court was also dealing with the issue as to whether an appeal was a completely different and independent suit from the lower court matter or not.

9. I also find that the trial magistrate did proceed to consider the merits of the application and he made a determination based on that analysis.  It is therefore not tenable for appellant to claim that their application was dismissed on account of being defective.  It was actually found to be unmeritorious.

10. The records indicate that the trial proceeded exparte on 28. 8.2013.  It is also apparent that the issue of service was considered.  The document confirming service is on page 114 of appellants bundle.  The then advocates for the appellants duly stamped this document and confirmed receipt on 27. 6.2013.  There was no denial of service from Isaboke & co advocates.

11. I find not the slightest reason to discredit the ruling of the trial magistrate.  I can only add that litigation must come to an end at some point. This court has a constitutional mandate to ensure that justice is dispensed with expeditiously see article 159 /2 (b) of the constitution and section 1A & B of the civil procedure Act. Although litigation herein commenced many years ago (around 2007) the dispute itself appears to have arisen around 2004, (14 years ago).

12. Having noted that the trial proceeded properly, then I find no basis of setting aside the judgment.

13. In the circumstances, I give final orders as follows:

i) The appeal herein is dismissed with costs to respondent.

ii) Any orders of stay of the judgment delivered on 4. 11. 2013 are hereby set aside.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 25TH DAY OF JULY, 2018 IN THE PRESENCE OF:-

Court Assistant:Janet/Galgalo

Mutuma Joel holding brief for Mwirigi for appellant

B.G Kariuki holding brief for C. Ungu for respondent

HON. LUCY. N. MBUGUA

ELC JUDGE