Kamakil v Korir & another [2025] KEELC 3259 (KLR)

Kamakil v Korir & another (Environment & Land Case E018 of 2024) [2025] KEELC 3259 (KLR) (19 March 2025) (Ruling)

Neutral citation: [2025] KEELC 3259 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case E018 of 2024

FO Nyagaka, J

March 19, 2025

Between

Abraham Mariach Kamakil

Plaintiff

and

Elijah Kiptanui Korir

1st Defendant

Dinnah Jebet Sang

2nd Defendant

((Application dated 12/06/2024))

Ruling

Brief Facts 1. This ruling is in respect of an application brought by the 1st Defendant. It is dated 12th June, 2024. It seeks the following orders:1. …spent.2. THAT this Honourable court be pleased to review its orders made on the 8th day of May, 2024, on the status quo in plot No. 549 within the Chepchoina phase II settlement scheme.3. THAT the costs of this application be provided for.

2. The Application was based on grounds set out in the body and supported by the Affidavit of Elijah Kiptanui Korir, the 1st Defendant herein, sworn on 12th June, 2024. The Affidavit basically repeated the contents of the grounds in support of the application albeit in deposition form.

3. The Applicant stated and deposed that on 8th May, 2024 the Court gave orders to the effect that the status quo obtaining on the suit land be maintained pending hearing and determination of the suit. He added that the Court clarified that the status quo was that the Plaintiff who was in possession of the suit land hence he remains on it. He stated that the court, in reaching its determination, placed reliance on the oral evidence of the Area Assistant Chief whom the Court summoned to clarify the same upon the parties not agreeing in what the status on the ground was.

4. He stated further that it came out that the Area Chief misrepresented facts to the Court thereby misleading it into issuing the orders for status quo as described. He stated that he lodged a complaint against the Area Assistant Chief who was summoned to the County Commissioner’s Office. On 14th May, 2024 a ground report was conducted and it confirmed, from the neighbors, that he (the Defendant) had been in occupation of the suit land from 2023. He went on to state that the Area Assistant Chief intimated before the Deputy County Commissioner that the information he supplied to court was based on what the Plaintiff’s employees had told him. He stated that it was necessary for the court to review its orders as compliance with the current status quo orders would amount to an eviction.

Response 5. The Plaintiff filed a Replying Affidavit sworn on 15th July, 2024 wherein he averred that on 8th May, 2024 the court issued orders for maintenance of the status quo to the effect that he remains in possession of the suit land pending hearing and determination of the suit. He averred further that the 1st Defendant was present when the Area Assistant Chief gave his testimony but failed to cross-examine him. He added that the 1st Defendant’s Advocate informed the court that he would advise his client to remove the fence erected contrary to the court orders. He also averred that the claim by the 1st Defendant that he had been in occupation of the suit land had not been supported by any evidence. He averred that the Deputy County Commissioner applied influence on his junior employees thus interfering with the court process.

6. He deposed further that he had produced a report confirming that he had been in occupation of the suit parcel and that the neighbors would be unable to identify the suit land. He averred that the 1st Defendant had no right of audience until he purged the contempt he had made. He averred that it would be in the interest of justice for the court to maintain the status quo.

Plaintiff’s Submissions 7. Learned counsel for the Plaintiff filed his submissions dated 17th September, 2024, wherein he identified two issues for determination. The first issue was whether the court should review its orders made on the 8th day of May, 2024, on the status quo of plot no 549 within the Chepchoina phase II settlement scheme. He relied on Section 80 of the Civil Procedure Rules and Order 45 Rule 1 of the Civil Procedure Rules.

8. He submitted that the 1st Defendant’s application failed to meet the threshold for review. On the first requirement of discovery of new and important matter, counsel cited the case of Alpha Fine Foods Limited v Horeca Kenya Limited & 4 Others [2021] eKLR. It was his submission that the misrepresentation of facts by the area assistant chief does not qualify as a new and important matter since it was an argument on the occupation of the suit land. He submits that the 1st Defendant had the option to cross-examine the assistant chief or produce evidence to counter his testimony, but he failed to do so. On the other requirement of an error apparent on the face of the record and any other sufficient reason, he relied on the case of Omote & Another v Ogutu (Civil Appeal E005 of 2021) [2022] KEHC 1644 (KLR). He submits that arguments on misrepresentation of facts by a witness do not qualify as an error apparent on the face of the record. He also relied on the case of Republic V Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR.

9. He submits that the 1st Defendant disobeyed the orders of 8th May, 2024, and filed an application for contempt. He argues that the 1st Defendant is asking the court to sanitize disobedience and reward contemnors. He added that the 1st Defendant had no intention to obey the court orders since he rushed to lodge a complaint against the assistant chief. He also added that the 1st Defendant elected not to counter the assistant chief’s testimony but went ahead and did an interview with the neighbors without involvement of the court.

10. The second issue on costs, counsel relied on Section 27 of the Civil Procedure Act and urged the court to dismiss the application with costs.

11. Counsel filed a further submission dated 12th November, 2024 where he reiterated his earlier submission and argues that the Assistant Chief’s change of mind on who was in possession of the suit land was unduly influenced by his superior the Deputy County Commissioner Endebess who directed him to do a further evaluation on the ground. He submits that the chief was better placed to know his subjects and the parcels of land.

1st Defendant’s submissions 12. Counsel for the 1st Defendant filed his submissions dated 18th November, 2024 in respect of the two applications. Regarding his application for review of the orders made on 8th May 2024, he relied on Order 45 Rule 1 of the Civil Procedure Rules and submitted that the Area Chief and the Assistant Chief were categorical on who was in possession of the suit land as at 8th May, 2024 when the order was issued. He submits that the Assistant Chief informed the court that he was misled to a different plot by the Plaintiff’s agents. He argued that at the time the court decided on the issue of possession, the 1st Defendant was in possession. He added that the Plaintiff’s counsel acknowledged the said position on 28th May, 2024, through his annexure AMK III. He urged the court to review the orders of the status quo.

Analysis and Determination 13. The Application herein is for review of orders made by this Court earlier. whether the grounds and facts presented make the Application are merited hence calling for a review this Court is guided by the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule (1) of the Civil Procedure Rules.

14. Section 80 of the Act provides that:“Any person who considers himself aggrieved-(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

15. Further, Order 45 Rule 1(1) of the Civil Procedure Act provides that:“(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.”

16. From the above, it is now settled law that for a party to succeed in an application for review and setting aside of a judgment, decree, ruling, or order of a Court, the applicant must prove that:i.There is discovery of new and important matter or evidence which after the exercise of due diligence was not within the applicants’ knowledge and which could not therefore produce at the time the order was made or,ii.Some mistake or error apparent on the face of the record or,iii.Any other sufficient reason.

17. Further that the application has been brought without undue delay.

18. This court has considered the application. It is of the view that the main issue for determination is whether the application is merited. With regard to the first application dated 12th June, 2024 for review, it is not in dispute that this court on 8th May, 2024 issued orders for status quo pending the hearing and determination of the main suit. It is also not in dispute that at the time the orders were issued, it was a position given to the Court by the two administrative officers that the Plaintiff was in possession of the suit land. This position was buttressed by the Assistant Chief’s report presented in court.

19. However, following the filing of the instant application, the Court on 19th September, 2024, summoned the Assistant Chief to confirm whether and why he misled the Court if the allegations by the 1st Defendant were true. On the material date, he clarified that he was misled regarding the information he gave the Court that led it to reach the conclusion that the Plaintiff was in possession of the suit land. Further that it was because he had not personally visited the suit land by that time. He testified that he had not done a ground report to establish the correctness of the status of the land.

20. Upon cross-examination on this latter date, he confirmed that one Selly Cherop was the one in possession of the suit land since 2021, and that the 1st Defendant was the one who had leased the land to her. He produced a report dated 14th May, 2024.

21. The Plaintiff submitted that the 1st defendant did not cross-examine the Area Assistant Chief on 8th May 2024 when he gave evidence that he was the one in possession. Further that the neighbours to the parcel of land in question could not tell the extent of the land. In my humble view, the submissions are flawed. It is not claimed by anyone that the boundaries of the suit land are fluid. It is therefore a matter of conjecture that one cannot tell the extent thereof, hence not know who is in possession thereof. The issue is whether the Plaintiff or the Defendant (through his agent) is in possession. This position has been clarified by the same officer who gave a different report earlier. The argument that the County Commissioner exerted influence on the Area Assistant Chief to change his mind is neither here nor there because the Area Chief clarified that he had not visited the suit land prior to coming to testify. It was therefore important that upon receiving conflicting information, he visit the land and confirm by himself who was in occupation. This he did, hence the latter report.

22. About obedience of court orders, courts in our legal system have said much about them. In the Kenya Human Rights Commission v Attorney General & another [2018] eKLR the Court emphasized as follows:“Article 159 of the Constitution recognizes the judicial authority of courts and tribunals established under the Constitution. Courts and Tribunals exercise this authority on behalf of the people. The decisions courts make are for and on behalf of the people and for that reason, they must not only be respected and obeyed but must also be complied with in order to enhance public confidence in the judiciary which is vital for the preservation of our constitutional democracy. The judiciary acts only in accordance with the Constitution and the law (Article 160) and exercises its judicial authority through its judgments decrees orders and or directions to check government power, keep it within its constitutional stretch hold the legislature and executive to account thereby secure the rule of law, administration of justice and protection of human rights. For that reason, the authority of the courts and dignity of their processes are maintained when their court orders are obeyed and respected thus courts become effective in the discharge of their constitutional mandate.”

23. Elsewhere, in Nthabiseng Pheko v Ekurhuleni Metropolitan Municipality & another CCT 19/11(75/2015) Nkabinde, J observed that:-“The rule of law, a foundational value of the Constitution, requires that the dignity and authority of the courts be upheld. This is crucial, as the capacity of courts to carry out their functions depends upon it. As the Constitution commands, orders and decisions issued by a court bind all persons to whom and organs of state to which they apply, and no person or organ of state may interfere in any matter, with the functioning of the courts. It follows from this that disobedience towards courts orders or decisions risks rendering our courts impotent and judicial authority a mere mockery. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced.”

24. In Canada, the Court was more emphatic than any other in other jurisdiction. It did so in the case of Canadian Metal Co. Ltd v Canadian Broadcasting Corp(N0. 2) [1975] 48 D.LR(30), where it stated that:“To allow court orders to be disobeyed would be to tread the road toward anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn… if the remedies that the courts grant to correct… wrong can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the courts will quickly result into the destruction of our society.” Courts therefore punish for contempt to insulate its processes for purposes of compliance so that the rule of law and administration of justice are not undermined. Without this power or where it is limited or diminished, the court is left helpless and its decisions would mean nothing. This ultimately erodes public confidence in the courts; endangers the rule of law, administration of justice and more importantly, development of society. That is why the court stated in Carey v Laiken [2015] SCC 17 that; “Contempt of court rests on the power of the court to uphold its dignity and process. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.”

25. Flowing from the above, it is not in doubt that courts will punish for contempt of court to uphold their dignity and the rule of law. The question regarding the instant matter is whether the application is merited. One thing is clear: The Plaintiff misled the Court through his agents, who misled the Area Assistant Chief. He wishes the court to punish the 1st Defendant for holding an incorrect position. This Court finds so because, in view of the above, it is now clear that the dispute that the Assistant Chief misled the court into issuing its orders dated 8th May, 2024 and with that, it would be in the interest of justice that the error is corrected. Clearly, the matter of the Area Assistant Chief knowing of the occupation of the 1st Defendant on the suit parcel of land and not the Plaintiff is the discovery of a new and important matter which was not within the knowledge of the witness. It falls into one of the conditions of Section 80 of the Civil Procedure Act and Order 45 (1) of the Civil Procedure Rules. I therefore find that the application for review is merited.

26. This Court thus directs that the status quo orders shall remain in place, but specifically that the party in possession as at 8th May 2024, being the 1st Defendant and/or his agents, remain and is declared to be the rightful person in occupation of the suit land. That shall remain until the case is heard and determined. This matter shall be mentioned on 3rd April 2025 for further directions.

27. The Respondent is to bear the costs of the Application.

28. It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIA THE TEAMS PLATFORM ON THIS 19TH DAY OF MARCH, 2025. HON. DR. IUR FRED NYAGAKAJUDGEIn the presence of:Mr. Ambutsi, Advocate for PlaintiffMs. Nafula Advocate for MS/ Serebe, Advocates for 1st Defendant