Kitgagich Tea Estate Limited & Kelelwa Enterprises Limited v James Kosgey [2019] KEELC 754 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OFKENYA

AT NAKURU

ELC NO.258 OF 2015

KITGAGICH TEA ESTATE LIMITED....................................1st PLAINTIFF

KELELWA ENTERPRISES LIMITED .................................2ND PLAINTIFF

VERSUS

JAMES KOSGEY........................................................................DEFENDANT

R U L I N G

1. Before me for determination is the applicant’s Notice of Motion application dated 13th September 2019. The application is brought under Order 45 Rule 1 and Order 50 Rule I of the Civil Procedure Act and Article 159 of the Constitution. The application seeks Orders:-

1. That the Court be pleased to review  and set aside  the order issued on 22nd September 2015 by Hon Munyao  Sila

2. That the costs of the application be provided for.

2. The application is supported on the grounds outlined on the body of the application and on the supporting affidavit sworn by Anthony Mwai, Managing Director of the 1st plaintiff/applicant. The applicants aver that they are the ones who planted the over 60,000 blue gum trees on the suit property which now both the plaintiffs and the defendants claim ownership of. They aver the trees have now matured and are ready for harvesting and unless they are harvested at the right time they will lose their value hence occasioning loss to the company. The applicants aver that the order issued on 22nd September 2015 barred either party from harvesting the trees and hence the need to have the order reviewed to avoid the trees becoming valuless.

3. The defendant vide his replying affidavit sworn on 29th September  2019 in opposition  to the application avers that  he is the bonafide registered owner of the suit property and denies that the applicants  are the owners of the land. The defendant denies it was the applicants who planted the blue gum trees and contends it would not be in the interest of justice for the Applicants to be permitted to harvest the trees.

4. On 22nd September 2015 Munyao, J made an order in the following terms:-

“I have  considered the application  by defendant. Since  the defendant also  claims the trees,  the plaintiff  is also barred from selling or cutting  the down. The effect  is that both  plaintiffs and defendant are  barred  from dealing with the trees pending  inter partes hearing  on 2nd November 2015”

5. The interlocutory applications were not heard on 2nd November 2015 as the parties sought to file further affidavits. The matter was fixed for mention on 18th January 2016 when Munyao, J after hearing counsel for the parties made the following orders:-

“owing to the above, the  order of  22nd September 2015 ordering  the status quo be maintained to be preserved until the hearing  and determination of the case. The applications dated 15th September 2015 and 22nd September 2015 are hereby compromised.”

6. These are the orders the plaintiffs seek review of. I have perused the Court record and it does appear to me that the parties have not been particularly anxious to facilitate the matter to trial. The parties took a while to comply with Order 11 of the Civil Procedure Rules. On 20th June 2018 the parties informed the Court they were in negotiation with a view of settling the matter. Nothing further was heard of the result of the negotiations. A hearing date was fixed on 4th March 2019 but was aborted on the application of the plaintiff. Though the suit was fixed for hearing on 12th November  2019, the plaintiff filed  the present  application for review  whose effect  unfortunately would be to affect the scheduled hearing as the ruling on the application  regrettably  will not have been delivered by the date the case is  fixed for hearing.

7. Turning to the instant  application I have to satisfy  myself  that  there is ground to justify a review of the order the parties  mutually agreed to; namely to have the status quo maintained until the suit  was heard and determined. The order for status quo was justifiable because both the plaintiffs and the defendant each claim ownership of the suit property where the trees are growing. The 2nd plaintiff holds a Title Deed for the suit land Nakuru/Baraget Settlement Scheme/713 issued on 10th October 2005 measuring 28. 8 Hectares. For his part the defendant equally holds title for the same parcels of land issued on 3rd October 2008 but measuring 30. 6 Hectares. Who between the two registered title holders holds the original title? The defendant denies it was the plaintiffs who planted the trees growing on the suit land. I have noted the letters annexed as exhibits to the plaintiffs application  as evidence that the trees  were planted  by the plaintiffs do not  indicate  the particulars of the land where  the trees  were being  planted  and further  that the letters all relate to a  period  before either of the parties were issued the titles that they exhibit to support ownership. In the circumstances one cannot say with certainty without perhaps taking evidence at the trial that those are the trees growing   on the disputed land.

8. The application by the plaintiffs seeking review  of the order  of 22nd September 2015 in  my view does not satisfy any of the conditions necessary  for review under  Order 45 Rule 1 of the Civil Procedure Rules to warrant  the  Court  to grant a review . It  cannot be said there has been discovery of new and important  matter/or evidence which  was unavailable at the  time the order  was made  and neither has it been demonstrated there  was some mistake or error apparent on the face of the record  to warrant  review. The plaintiff equally has not shown there was some other sufficient reason to justify a review.

9. If the parties  are of the view  that the value of the trees  stand to be diminished if they have to await  the determination of the suit  on merits,  there is nothing  that prevents  the parties  from  jointly arranging to have the trees sold and harvested and the sale proceeds invested in a joint earning account possibly in the names of the parties advocates pending the hearing and determination of the suit. That however is a decision for the parties to make as the Court is merely suggesting how the parties could possibly mitigate any loss that could result in the delayed finalization of the matter in Court.

10. Be it as it may be, I have found the application by the plaintiffs dated 13th September 2019 to be lacking in merit, and I order the same dismissed with costs to the defendant.

11. Orders accordingly.

RULING DATED SINGED AND DELIVERED AT NAKURU THIS 21ST DAY OF NOVEMBER 2019.

J M MUTUNGI

JUDGE