Josphat Kuria Gathioni v James Maina Njoroge, Julius Tangus, Stanley K Sitienei & Evanson Njenga; Betwel K Marindany & others (Intended Interested Parties) [2020] KEELC 2894 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAKURU

ELC NO. 21 OF 2018

JOSPHAT  KURIA  GATHIONI..........................................................................PLAINTIFF

VERSUS

JAMES  MAINA  NJOROGE....................................................................1ST DEFENDANT

JULIUS  TANGUS......................................................................................2ND DEFENDANT

STANLEY  K SITIENEI ...........................................................................3RD DEFENDANT

EVANSON  NJENGA.................................................................................4TH DEFENDANT

AND

BETWEL K MARINDANY & OTHERS...............INTENDED INTERESTED PARTIES

R U L I N G

1. The Court on 20th March 2019 after hearing of the suit delivered a judgment in favour of the plaintiff. The Court found the defendants to be trespassers and awarded the plaintiff  Kshs.250,000/= as general damages for trespass. The Court ordered the defendants to vacate the suit land within 30 days failing which the plaintiff to be at liberty to apply for their eviction. The plaintiff was also awarded the costs of the suit.

2. The defendants vide  a Notice  of Motion dated 27th June, 2019  expressed to be brought  under  section 3A, 6 and 80 of the Civil Procedure Act, Order  45 (1)  (a) , 50(1)  & Order  10 (10) of the Civil  Procedure Rules, Article 50 (1)  & 159 (2)  (d)  of the Constitution  and  section 152 E, 152G of the  Land Act, 2012 inter alia prays for stay of execution  of the decree issued on 20th March 2019; that the decree and other  consequential orders be reviewed and set  aside and for the enjoinment as defendants of the persons set out in the addendum to the application for them to defend their  interest in the suit  property. The defendants further pray that the present suit be stayed pending the hearing of various suits relating to the same issues pending before  various Courts. The application was premised on the grounds set out on the body of the application and the affidavit sworn in support by the 2nd defendant.

3. The Applicants in support of the application aver that sometime in January 2018 they had instructed their former advocates on record to apply for leave to amend their defence to include the grounds they had set out in support of the instant application which apparently the advocates failed to do. The applicants state that the parties sought to be enjoined as defendants, had lived cultivated and occupied the suit land  for more than 15 years and if evicted would suffer irreparable  loss and damage.

4. The plaintiff respondent filed grounds of objection on 30th September 2019. The plaintiff inter alia contended  the application was misconceived and an abuse of the  Court process; that there was no discovery  of any new material  facts and/or any sufficient  reason  to warrant  stay and/or  review of the judgment, and  that the defendants sought to be enjoined had no interest in the suit land other than through the defendants who had leased portions to them and further that the defendants only want  to use the “new parties” to reopen  the suit  in  an attempt  to get  what they failed to get in the  in the concluded suit.

5. The parties argued the application by way of written submissions. I have carefully reviewed the application, the affidavit in support and the grounds filed in response thereto together with the submissions filed by the parties. I have equally reviewed the record  of the proceedings. As per  the Court record the suit was heard on 20th September 2018 in the presence of  the defendants former advocate Mr. Muchafu. At the commencement  of the hearing  Mr. Muchafu drew the Court’s  attention  to the pendency  of petition No.43 of 2016 before Nakuru  ELC 2 which he stated  related to the entire  Eastern  Mau  Forest where the suit land  was located. Munyao J, upon hearing counsel of parties ruled that there was no demonstration that the suit  had any relationship with the petition  and directed  the hearing of the  suit to proceed. It is  apparent  that even though  the applicants stated  they had given their former advocate details relating to the other alleged pending matters, these were not brought to the attention  of the judge.

6. The Applicants application is basically two prolonged. Firstly, the applicants the seek review and/or setting aside of the judgment delivered on 20th March 2019, and consequent to such review and/or setting aside, a stay of the suit pending the hearing and determination of the various suits referred to. Secondly, the applicants seek the joinder of the 27 persons set out in the addendum to the application as defendants. The applicants additionally have ominously sought  the lifting  of a caveat  placed by the National Land Commission over the entire Nakuru/Marioshoni Settlement  Scheme and further the implementation of the finding of Task Force on implementation of the decision of the African  Court  on Human  & People’s  Right  issued against the Government  of Kenya in respect  of the  Rights of the Ogiek  Community  of Mau.

7. It is  obvious  all the other prayers, the defendants seek in the application  are dependent  on the prayer  for review  and/or setting aside of the judgment  of 20th  March 2019  being granted . If review and/or setting aside is denied, it follows all the other prayers would fail. It is thus imperative that I consider whether any basis exists to warrant a review or setting aside of the judgment of 20th March 2019.  Order 45 Rule 1 of the Civil Procedure Rules provides for the conditions that an applicant for review needs to satisfy in order to succeed in an application for review. It provides as 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.

8. Thus in order for an applicant to succeed in an application for review, the applicant must satisfy the court that: -

(i) There has been discovery of new  and important  matter or evidence which after the exercise  of due  diligence, was not within the knowledge of the  applicant or could  not be available at the  time the decree was made;  or

(ii) there  was a mistake  and/or error apparent on the face  of the record; or

(iii) there was  some other sufficient  cause/ or reasons;  and

(iv) the application has been made without unreason  delay.

9. In the  present  suit the plaintiff claimed  ownership of land parcel  Nakuru /Kapsita/1096  in respect  of which  he held a title deed issued on 16th July  1997. The plaintiff  alleged that the defendants had in 2006 unlawfully  trespassed onto the land. He sought a declaration that the land belonged to him and an order of eviction. In their  joint  defence filed  on 6th September  2007  the defendants  averred that they had been allotted the land in 1994  and that they had occupied the land since then. Both the plaintiff and the defendants participated in the trial and the Court  in its evaluation of the evidence found  and held that  the defendants  had failed to demonstrate that  they had been allocated the land for their use and/or that the plaintiff had acquired title to the land fraudulently. The Court upheld the plaintiff’s title to the suit property and held that the defendants had no right to be on the  property  and were trespassers. The Plaintiff’s suit herein related to a specific parcel of land which he had been allocated and held title to and in regard whereof he claimed the defendants had trespassed into. The defendants did not show in what respect the varions other pending suits they have referred to in the application for review as having  been pending, affected the suit property. The suit Milimani  ELC No. 821 of 2012(OS) (2014)  eKLR as at the time the present suit was heard, had been decided judgment having  been rendered in 17th  March, 2014.  In the suit the Ogiek as a community were claiming entitlement to reside and live generally in the East Mau Forest. They were not claiming a specific, land parcel that had been alienated. The Court upheld their claim and directed the National Land Commission to identify land  for the settlement of the Ogiek members which  land was to be  excised within the Marioshioni location, Elburgon  Division  and Nessuit Location, Njoro Division,  Nakuru . The area to be delineated could not include any private land that had already   been allocated and alienated.

10. The applicant’s are not basing their applications for review  on the discovery  of any new matter  or evidence not available at the time of the decision but rather on any other  sufficient cause or reason. I have considered the application and I am not able to identify such other sufficient cause or reason that can warrant a review of the judgment/decree. The applicants apparent “sufficient cause” is that around January 2018 they had instructed their advocate then on record to seek leave to amend the defence and in particular seek a stay of the matter as issues of ownership of properties within the wider geographical area of Nakuru/Marioshoini area where the suit property was situate was pending determination both in Courts of law and administratively. The advocates did not carry out that instruction and as the record shows proceeded to have the suit prosecuted and the applicants participated in the prosecution and gave evidence. As I have observed there was no demonstration as to how the pending cases affected the instant suit and in my view it was not enough to allege that there were cases pending which had a direct bearing to the instant suit. The  suit  related to a specific parcel  of land whereas  the suits referred to related  to a wide geographic area which  cannot  be said to include any specific parcels of that may have been alienated to individuals like the plaintiff/respondent. The applicants nonetheless never made the application for amendment and/or stay of proceedings before the suit was heard and determined on merits on the basis of the pleadings that were before the Court. The applicants had the opportunity to make the application for amendment and/or stay  which they did not make. I do not consider  such an application  can be made  after judgment. One cannot  amend pleadings where a suit has been  heard and determined on merit  and neither  can  such a suit  be stayed  since the same  has been heard and concluded.

11. Having  regard to the conditions  under  Order  45 (1) of the Civil  Procedure  Rules under  which  a review may be granted   I am satisfied that  the applicants  have failed  to satisfy any of the conditions and the application  for review,  is declined. As the applicants have failed in their application for review, of necessity the application for joinder of the 27 persons whose names are set out in the addendum to the application fails. It is unclear why it is the defendants/applicants who are seeking their joinder and they themselves did not make the application to be enjoined as such when the suit was ongoing.  The suit having been concluded and judgment rendered, the new parties cannot be properly enjoined to the suit. In case they have a separate and distinct cause of action against the plaintiff they can nonetheless file a fresh suit against the plaintiff. However if their claim would be through the defendants/applicants, they would be bound by the judgment as servants and/or agents of the defendants.

12. The net result is that I find no merit in the defendants Notice of Motion dated 27th June 2019 and I accordingly order the same dismissed with costs to the plaintiff /respondent.

13. Orders accordingly

Ruling dated signed and delivered electronically at Nakuru this 7th Day May 2020.

J M MUTUNGI

JUDGE