M’Bechi Nkandau, M’Murithi M’mbwiria, Joseph Mwikumi M’njogu, M’Itonga Mutunga, Francis Kamau Ngugi & Joseph Mbutu M’Imanyara (Suing on behalf of the 14 persons whose list of names is attached with this plaint) v Attorney General, Director of Land Adjudication & Settlement, Land Registrar Meru & All the Plaintiffs in CMCC 83/1997 and HCCC 78/2002 (List Herein Attached [2021] KEELC 4637 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC SUIT NO. 122 OF 2007

M’BECHI NKANDAU...............................................................1ST PLAINTIFF

M’MURITHI M’MBWIRIA.................................................... 2ND PLAINTIFF

JOSEPH MWIKUMI M’NJOGU...........................................3RD PLAINTIFF

M’ITONGA MUTUNGA .........................................................4TH PLAINTIFF

FRANCIS KAMAU NGUGI.....................................................5TH PLAINTIFF

JOSEPH MBUTU M’IMANYARA (Suing on behalf of the 14 persons whose

list of names is attached with this plaint)

VERSUS

HON. ATTORNEY GENERAL........................................................1ST DEFENDANT

DIRECTOR OF LAND ADJUDICATION & SETTLEMENT.....2ND DEFENDANT

LAND REGISTRAR MERU............................................................ 3RD DEFENDANT

ALL THE PLAINTIFFS IN CMCC NO. 83/1997 AND HCCC NO. 78/2002 (LIST

HEREIN ATTACHED........................................................................ 4TH DEFENDANT

RULING

1. Before me is a notice of motion dated 3/12/2019 brought pursuant to the provisions of order 45 rule 1, order 51 rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act seeking orders to review the judgement delivered by this court on 22/5/2019 to include land parcels No.291, 1130, 1132 and 469 which were erroneously left out in the final orders of this court.

2. The application is premised on the grounds on the face of it and the supporting affidavit of Francis Kamau Ngugi who stated that this court delivered a judgement on 22/5/2019 where it was ordered that “All the titles issued in respect of the Land parcels mentioned in the minister’s decision, the same being numbers KIAMURI “A”/1183, 295, 1217, 448, 294, 293, 292, 286, 468, 290, 285, 284, 283, 1019, 1020, 1017, 1147, 981, 982 and 1018 or their subsequent subdivisions are to be cancelled forthwith and the titles to be issued in the names of the original owners”.

3. The applicant contends that on the face of the order in the judgement, it is evident that parcels No. KIAMURI “A”/291, 1132, 1130 and 469 were erroneously left out. Francis Kamau stated that he was the original owner of KIAMURI “A”/291 and urged this court to amend its judgement to capture the four parcels that were left out and to lift all the cautions, restrictions and inhibitions which might have been registered over the parcels in order to enable the implementation of the courts decree.

4. The application was opposed through the replying affidavit of Jamlick Mwongera M’Nkanata filed on 3. 2.2020 who avers that he was not a party to the suit but when he became aware of its existence, he filed a statement to protect his interest over his parcels LR No. Kiamuri “A”/286 and 291. His parcel LR No. Kiamuri 291 is not affected by the judgement as he and his wife acquired the said property through an exchange of his property LR No. Kiamuri “A”/1921 and 1922 with one Julius Kinyua Jason M’Mungania who is not a party to this suit.

5. He added that the applicants are guilty of inordinate delay and have not explained their reasons thereof as the judgement was delivered way back on 22/5/2019. He additionally indicated that there is a civil appeal No. 284 of 2019 in Nyeri and therefore it would only be fair if the applicants await its outcome.

6. The application was additionally opposed by Mutwiri Tarcisious Mugambi through his replying affidavit filed on 16. 6.2020. He associated himself with the averments of Jamlick Mwongera adding that the applicants do not utilize LR No. Kiamuri “A” 291, 1130, 1132 and 469. He contended that the court did not make the alleged error and this is an attempt by the applicants to reopen the case for hearing. The applicants furthermore did not disclose the parties who are affected by the subject parcels and therefore have come to court with unclean hands.

7. I have carefully perused the application, affidavits and the rival submissions and the issue to be determined is whether to review the judgement which was issued on 22/5/2019 to include land parcels No. 291, 1130, 1132 and 469.

8. The applicable law on review is Order 45 Rule 1 of the Civil Procedure Rules which states 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.”

9. In Muyodi -Vs- Industrial and Commercial Development Corporation & Anor [2006] 1 EA 243, the Court of Appeal described an error apparent on the face of the record as follows:

“In Nyamogo & Nyamogo Vs Kogo [2001] E.A 174 this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must be left tobedetermined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably benotwo opinions, a clear case of error apparent on the face of record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record isapossible one, it cannot be an errorapparent on the face of the record, though another view was also possible. Mere error or wrong is certainly no ground forreview…”.

10. On examination of the record, this court was clear in its judgement at paragraph 50 on whether the titles issued in respect of the parcels known as LR. Kiamuri ‘A’/1185, 295, 1217, 448, 294, 293, 292, 291, 286, 132,130, 468, 290, 285, 284, 283, 1019, 1020, 1017, 1147, 981, 982 and 1018 should be cancelled. This court was precise when it expressed itself and indicated that the 23 mentioned parcels are the ones which were the subject of the minister’s decision which was illegally implemented and unlawfully obtained.This court in a quest to unravel the mystery of the letter of 25. 7.1994 (the one which implemented the minister’s decision), extracted the whole decision of the minister as captured on the lengthy paragraph 38 of this court’s judgment.  The 23 parcels mentioned are those captured in paragraph 9 herein. The parcels mentioned by the applicant were not subject of the minister’s decision except parcel 291.

11. In ground no. 3 in the current application, it is averred that the relevant parcels are those in the minister’s letter of 25. 7.1994. However, this letter whose entire contents are captured in paragraph 39 of the court’s judgment is the one which triggered the dispute herein. It was authored by the Director of Land Adjudication and Settlement and it is the one which actually changed the decision of the minister. There was no error in this court’s judgment in considering that the parcels concerned were those mentioned in the minister’s decision and not those mentioned in the letter of 25. 7.1994.  Thus the only error made in the final orders of the court’s judgment is the omission of parcel 291. The claim by one Jamlick Mwongera that he is the registered owner of parcel 291 cannot be considered in these proceedings as the court is not reopening the case. This court is simply rectifying an error apparent on the face of the record, and the error is that parcel 291 was mentioned in the decision of the minister and shall therefore be included in the judgment.

12. Regarding the issue of delay, I find that indeed there was some element of delay in filing the present application on 3. 12. 2019, 6-7 months after the delivery of the judgment in May 2019. However, I have taken into account that the parties have been in the litigation arena for the last 37 or so years since 1983 when the committee case was lodged, and that finally, this court was able to make a determination on the dispute.  Against this background, I will not consider the 6-7 months delay as inordinate.

13. On the issue of removal of cautions, restrictions and inhibitions on the suit parcels, I find that these prayers were not sought in the application. It is only in the affidavit of Francis Kamau that he urges the court to order the removal of these restrictions. The provisions of order 51 rule 4 of the Civil Procedure Rules stipulates that “Every notice of motion shall state in general terms the grounds of the application ….”.  The applicant is rather casual in the manner he has approached the court regarding these prayers.   I find no merits in the same.

14. In the final analysis, the application partially succeeds to the extent that parcel 291 is to be included in the final order in point 2 of the judgment of 22. 5.2019. Where it shall be placed between parcel 292 and 286.  Pursuant to this ruling, the Judgment dated 22. 5.2019 is amended accordingly.

DATED, SIGNED AND DELIVERED AT MERU THIS 27TH DAY OF JANUARY, 2021

HON. LUCY. N. MBUGUA

ELC JUDGE

ORDER

The date of delivery of this Ruling was given to the advocates for the parties through a virtual session via Microsoft teams on 22. 10. 2020.  In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Ruling has been delivered to the parties by electronic mail.  They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.

HON. LUCY N. MBUGUA

ELC JUDGE