Mahiga Macharia Ngenenia v Walter Kamau Kinyanjui [2019] KEELC 2594 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC APPEAL NO. 30 OF 2017

MAHIGA MACHARIA NGENENIA.......................APPELLANT

VERSUS

WALTER KAMAU KINYANJUI..........................RESPONDENT

RULING

What is before the court is the appellant’s application dated 15th February, 2019 in which the appellant has sought a review of the decree issued herein by Justice D. Onyancha on 15th December, 2015 to include the particulars of the property which was in dispute in the lower court namely, KARAI/RENGUTI/124 (hereinafter referred to “the suit property”) which according to the appellant was erroneously omitted from the said decree. The application is supported by an affidavit sworn by the appellant on 15th February, 2019.

The appellant has averred that he wants the caution put by the respondent on the title of the suit property removed since the said caution has prevented him from dealing with the property thereby infringing on his property rights. The appellant has contended that if the orders sought are granted, Kiambu Land Registry would be able to remove the said caution. The application is opposed by the respondent through notice of preliminary objection dated 10th May, 2019.  The respondent has contended that the court pronounced itself on this appeal in its ruling dated 12th July, 2018 in which it stated that it is functus officio.  The respondent has contended further that the application is res judicata and amounts to an abuse of the process of the court.

The application was argued on 12th June, 2019. I have considered the appellant’s application together with the supporting affidavit. I have also considered the notice of preliminary objection filed in opposition to the application. Finally, I have considered the submissions by the parties.  I am in agreement with the respondent that the appellant’s application has no merit and is an abuse of the process of the court. First, in the ruling that was made by this court on 12th July, 2018, the court stated that what was before the court in these proceedings was an appeal from the lower court which was heard and determined. In the ruling, the court made it clear that following the determination of the said appeal, it became functus officio and could not attend to new issues and disputes arising between the parties post the judgment of the court on the said appeal. The court stated as follows, “This court is functus officio and cannot be of any help to the parties herein in their new dispute.” I am of the view that following that ruling, the appellant could not have approached the court again. If the appellant is aggrieved with the Caution that has been registered against the title of the suit property, nothing stops him from making an application to the Kiambu Land Registrar for the removal of the said Caution rather that coming back to this court for the review of a decree of the court which had nothing to do with the said Caution.

Secondly, as I have already mentioned, what the court was dealing with in these proceedings was an appeal from the lower court. The court heard the appeal and dismissed the same. The decree of the court should have stated simply that, “the appeal is dismissed with no order as to costs”. At the insistence of the appellant, the correctly extracted decree issued on 19th May, 2015 was amended by the Deputy Registrar to include information that is not normally contained in a decree. That is how we ended up with the decree issued on 15th December, 2015 which is sought to be reviewed. I have considered the grounds put forward by the appellant for the review sought. I am not satisfied that the application meets the threshold for review of decrees. As I have stated earlier, the appellant’s appeal was dismissed. No relief was granted to the appellant in relation to the suit property. It was not necessary therefore to mention the particulars of the suit property in the decree.

Finally, I am in agreement with the respondent that the appellant’s application is res judicata. The appellant had brought an application dated 13th February, 2016 seeking the removal of the Caution registered against the title of the suit property. The application was considered and dismissed by the court on 12th July, 2018. The court cannot be called upon once against to issue a decree for the removal of the same Caution.

The upshot of the foregoing is that the appellant’s Notice of Motion application dated 15th February, 2019 has no merit. The application is dismissed with costs.

Delivered and Dated at Nairobi this   4th day of July 2019

S. OKONG’O

JUDGE

Ruling read in open court in the presence of:

The Appellant present in person

Ms. Masinde h/b for Gakaria for the Respondent

Mr. Waweru-Court Assistant