Josphat Mwaniki Mwangi v Zacharia Mwaniki Mwangi & Joseph Kinyanjui Mwangi [2016] KEELC 644 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NYERI

ELCA  10 OF 2015

JOSPHAT MWANIKI MWANGI............APPELLANT/APPLICANT

VERSUS

ZACHARIA MWANIKI MWANGI......................1ST RESPONDENT

JOSEPH KINYANJUI MWANGI........................2ND RESPONDENT

RULING

1. This ruling is in respect of the motions dated 22nd April, 2016 and 6th June,2016 respectively.

2. The motion dated 22nd April, 2016 seeks to, inter alia, enlarge the time within which the applicant, Josphat Mwaniki Mwangi, ought to have complied with the order issued on 22nd September, 2015.

3. The order required the applicant to forward to this court the appeal allegedly pending at the defunct Provincial Appeals Tribunal within 14 days of the date of delivery of the ruling (22nd September,2015).

4. The application is premised on the ground that owing to inadvertence on the part of the applicant’s advocate, the applicant was unable to comply with the order.

5. Arguing that unless the orders sought are granted he will  suffer irreparable injury, the applicant urges the court to, in the interest of justice, allow the application.

6. The application is opposed on the ground that the  applicant has not been diligent in all applications he filed in this matter. Terming the application an abuse of the  process of the court, the respondent states that all parties were informed of the date of delivery of the ruling hereto.  The application is also said to have been overtaken by events (execution has already been effected and property  suit property transferred to a new owner).

Analysis and determination

7. In the ruling which is the subject matter of the application dated 22nd April, 2016 this court expressed doubt as to  existence of a valid appeal against the award read in  favour of the respondents. Nevertheless, it gave the appellant the benefit of doubt and ordered him to forward  the appeal allegedly pending before the Defunct Provincial Land Disputes Appeals Tribunal within 14 days of delivery of the ruling to enable it make further directions.

8. In that ruling, the court was categorical that if the appellant  failed to forward the appeal, the application that was the subject matter of the order would at the expiry of the time  given be automatically dismissed with costs to the  respondents.

9. The time given by the court lapsed on or about 6th October, 2015 after the applicant failed to comply with the said order of the court.

10. As pointed herein above, the effect of the lapse of the time  given by the court was to render the application that was the subject matter of that order dismissed with costs to the respondents.

11. Since the lapse of time had the effect of rendering the  application on which the order hereto was premised  dismissed, and there been no prayer to set aside the order dismissing the application, I hold the view that the current application is bad in law for want of substratum and/or for being premised on an application that was dismissed  without first setting aside the order for dismissal or review of those orders.

12. On the reason given for failure to comply with the order of the court; that the ruling delivered on 17th September, 2015 did not come to the attention of the applicant until 7th April, 2016, l note from the court record that the ruling was not delivered on 17th September, 2015 as scheduled. A  notice for delivery of the ruling was issued thereafter that  the ruling would be delivered on 22nd September, 2016. From the court record, this notice was received and signed for by one Monicah from the firm of Nderi & Kiingati  Advocates on 21st September, 2016. It is therfore not true as alleged by counsel for the applicant, that his client and  his firm were not notified of the ruling date for the  application.

13. Even assuming that parties were not notified of the date  for delivery of the ruling, owing to the delay in presentation of the application for enlargement of time, the failure to first set aside the order dismissing the application on which the  order was premised and failure to demonstrate the existence of the Appeal yet the court had expressed doubt  concerning existence of the appeal; I find the applicant’s  conduct not to be the conduct of a diligent litigant.  Consequently, I find the application to be without merit and  dismiss it with costs to the respondent.

The motion dated 6th June, 2016

14. The motion dated 6th June, 2016 seeks to, inter alia, enjoin Kirathi Mwangi Mwaniki, to the appeal and to restrict dealings with the suit properties pending hearing and determination of the appeal. The applicant also seeks cancellation of all the entries made during the pendency of  this application.

15. The aplication is premised on the grounds that this court  has recognised the pendency of the appeal herein; that the  respondents are unlawfully interferring with the suit  property and that there is a danger of the appeal being rendered nugatory.

16. The application is undefended.

Analysis and determination

17. This application is related to the application dated 13th  April, 2015 in that the orders sought therein are affected by  the orders issued in that application.

18. A reading of the ruling in that application (application dated 13th April, 2015) reveals that the temporary orders issued pursuant to that application lapsed at the expiry of the 14 days within which the applicant was to forward the appeal to this court. See paragraph 18 of the said ruling where the court stated:-

“18. That being the case, like the lower court, I  entertain doubt whether there exists a legally sustainable appeal on which the orders sought can  hinge. Be that as it may, noting that the fourth prayer is for direction on the alleged existing appeal, I direct the appellant to, within fourteen (14) days following delivery of this ruling to forward the appeal allegedly pending before the defunct Provincial Appeals Tribunal to this Court for further directions, failing which the application herein shall automatically stand dismissed with costs to the respondents.

19. In the meantime, the existing orders are extended  until then.”

19. It is clear from the foregoing cited portions of the ruling, that the temporary order of stay of execution of the decree  issued in favour of the respondent lapsed at the expiry of the 14 days given to the applicant to forward the appeal.

20. As pointed out in the application for enlargement of time,  there being no prayer for setting aside or review of the orders dismissing the applicant’s application for stay of execution; the application is bad in law for want of  substratum.

21. In view of the foregoing, I find it to be lacking in merit and dismiss it with no orders as to costs as the application was not defended.

Orders accordingly.

Dated, signed and delivered at Nyeri this 28th day of July,  2016.

L N WAITHAKA

JUDGE

In the presence of:

Mr. Nderi for the appellant/applicant

Mr. Gacheru h/b for mr. Wamahiu for the respondent

Court assistant - Lydia