Mishack Kibe Muiruri, John Njoroge Gacho, Francis Kinuthia Kibe, Julius Kanyiri Wambui & Mercy Mugeci Mburu (Suing on Behalf of 850 others) v Murang’a County Government & Land Registrar Murang’a; Delmonte Kenya Limited (Interested party) [2022] KEELC 172 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MURANG’A

ELC CASE NO. 47 OF 2020 (O.S)

MISHACK KIBE MUIRURI......................................................................1ST PLAINTIFF

JOHN NJOROGE GACHO.......................................................................2ND PLAINTIFF

FRANCIS KINUTHIA KIBE.....................................................................3RD PLAINTIFF

JULIUS KANYIRI WAMBUI......................................................................4TH PLAINTIFF

MERCY MUGECI MBURU........................................................................5TH PLAINTIFF

(suing on behalf of  850 others)

VERSUS

MURANG’A COUNTY GOVERNMENT................................................1ST DEFENDANT

LAND REGISTRAR MURANG’A..........................................................2ND DEFENDANT

AND

DELMONTE KENYA LIMITED........PROPOSED INTERESTED PARTY/APPLICANT

RULING

The matter for determination is the  Notice of Motion  Application dated  15th November 2021 by the proposed Interested Party/ Applicant  seeking for orders that;

That  this Honourable Court  be pleased  to review  or set aside  the Ruling  and order  given  by the Honourable  Lady Justice  Kemei on 15th July 2021.

That this Honourable Court be  pleased  to join Del Monte  Kenya Limited as an  Interested  Party to this suit

That the cause of this Application  be in the cause.

The Application is premised on the grounds that  the Proposed  Interested Party/Applicant  has come across new and important  information which could  not have been obtained at the time  it made its first  Application for joinder . That vide its Ruling delivered on  15th July  2021, this Court ( differently constituted)   held that the proposed  Interested party’s  argument that  the Plaintiff’s/Respondent’s  injunction  was targeted at its property  was speculative  as the Land Reference  Numbers referred  to by the Plaintiffs  were different   from those  of the properties  it owned. That  it  has confirmed without a doubt that the parcels  numbers cited  by the Plaintiffs in this suit  refer  to part of Land Reference  No. 12157which belongs to  the Proposed Interested Party . Further that the Plaintiffs/Respondents have  referred to the parcel  Numbers used  in the area  survey map  of 1956 and which is no longer in use . Further that in 1974 the Parcel Numbers  referred to  by the Plaintiffs  were amalgamated and together  with other  parcels formed L.R 12157. That the initial  Application was  filed and heard  before  it could have enough time to gather all the necessary information and the aforementioned information  has since come to light after  the hearing and determination  of the initial  Application for joinder.

In his supporting Affidavit,  Harry Odondi the Proposed Interested Party’s legal officer  averred that  in the suit the Plaintiffs/Respondents  had cited  different land reference numbers  from those  of  the proposed party’s  properties but gave  a geographical  description  which could  only refer to  its properties. He averred that he  has  been informed by Mr. Thuo Advocate  that he learnt from one Ms. Wamucii  who works  at  the land registry that L.R 9213/1 & 2  do not exist  in Murang’a Land Registry. Further that the Proposed Interested Party through its Advocates has made attempts seeking suitable clarifications but the 1st & 2nd Defendants have failed to  respond to their letters.

It was  contended that  the  Plaintiffs  are attempting to enter L.R 12157 that belongs to the Proposed Interested Party  to continue with quarrying activities  from where they left after the Court issued an injunction  against them in Murang’a  ELC Appeal 25 of 2019 . That the  Plaintiffs/Respondents  have  been referring to the  area Survey Map  of 1956 and which is no longer in use  as in 1974  the Parcel Numbers  referred to by  the Plaintiffs  were amalgamated  and  together with other references formed  L.R 12157 and the property is the same  that was the subject of  Kandara MCL& E No. 26 of  2019. He further averred that unless the proposed interested party is joined  the Court may proceed  to hear the Plaintiffs/Respondents   injunction  in his  absence  while in truth the  suit is targeted at  the Proposed Interested party  . That the 1st  Defendant/Respondent  has failed to  oppose the suit and its lack of interest  underscores  the fact that the 1st Defendant is aware  that it does not own the suit property .

The Proposed Interested party through Grishon  Ng’ang’a Thuo  its   Advocate  filed a supplementary Affidavit sworn on  8th December 2021 and  attached a formal order  dated  15th July 2021.

The 1st Defendant/Respondent  opposed  the Application and filed  grounds  of opposition dated 8th December 2021 on the  grounds that the Applicant has not introduced  any new evidence which could  not be found  with due diligence , Applicant has not faulted  the Ruling sought  to be reviewed and has not  satisfied  to law to warrant  review nor has it demonstrated proper interest to be enjoined.

In further opposing the Application , the Plaintiff/Respondent  through the 1st Plaintiff  Mishack Kibe Muiruri swore a Replying Affidavit  on 17th December 2021  and averred  that the Applicant had  the opportunity to address any issue from  the time it filed its Application  of 16th November 2021. That the instant Application has been brought  with no clear grounds  regarding the Applicant’s interest in the suit property  as the only documents introduced are letters  trying to inquire whether the suit land is the same as the one  subject of Murang’a  ELC Appeal No. 25 of 2019 with no confirmation . That the  substratum  and issue raised  in the instant Application  are the same as the ones raised in the Application dated 16th June 2021 that has already been heard and determined. That the Applicant has admitted that it is  not  the registered owner of  the  suit land and thus  it has no stake in the suit land  hence need  to  be joined in the suit.

The proposed Interested party/ Applicant  filed a further Supplementary Affidavit sworn by  Harry Odondi who averred that  the  initial joinder Application was filed in urgency  and it was determined swiftly and thus  they did not have time to dig up  relevant information  which it has since managed to obtain. That it took  immense effort to obtain  documents linking the parcel numbers  as former employees who had a better grasp had since left . That the suit properties are in the Applicant’s possession  and the  same are  currently under  pineapple crop. That  it is true that the Applicant has previously stated   that it does not own  the suit properties  but that the same was strictly limited  to the parcel of  land owned and occupied by the Ndoges the Applicant’s former director .

Further that bringing information  that shows part of the  suit property  belong to the Ndoges  they  have confirmed of their own volition  that they are claiming the  Applicant’s land   and that there is no connection between the  County Government’s letter  and the dispute herein.

The Application was canvassed with by way of written submission which the Court has carefully read and considered. The  Court  has also read and considered the  Application, the  Affidavits  and the relevant provisions of aw and finds that the issue for  determination is whether the  Proposed Interested party is entitled to the  Review orders sought.The applicable law for review has been provided for under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides as follows:

“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 judgement to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

Order 45 rule 1 sets out the grounds for review 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.”

Section 80gives the Court the  power of review while Order 45 sets out the rules. The rules restrict the grounds for review.  The  Proposed Interested Party has sought for review of the Court’s Ruling  on the grounds that  it is in possession of new and important evidence  as it has discovered  that the  Land Reference Numbers  referred  to in the Plaintiff’s pleadings namely L.R 9213/1 and 9213/2referred to  are  derived  from1956survey Plan  for the area  suit property is situate and that the  same is no longer in use  and in the current  survey  plan issued in 1974  and that is in use  the suit property  is Land Reference  number 12157 which it owned. Was this then important and new evidence that was not within the  Proposed Interested party’s knowledge?

Review is limited  to  various grounds amongst them new  and important evidence.  The Court has perused the  Ruling delivered  by  Hon.Lady Justice  J.G Kemeiin which the  Court held that ;

“although I subscribe  to a liberal  approach to  joinder  of a party in a suit  however in this case  it is the finding  of the Curt that the Applicant  has failed  to demonstrate  any of the grounds for joiner  cited in paragraph 15 above. It therefore becomes difficult to  determine the interest   or stake   of the  proposed interested party  in the matter based on the mere belief and speculation  of the Applicant .”

Further under the said paragraph 15 the Court stated that ;

In this case  the proposed interested party  has informed the Court  that it has cause to believe  that the suit property  in question belongs to it . That given the size of the and  it can only be referring  to the proposed interested party  estates/plantation. That the Plaintiffs  have in the past  litigated over its properties  without joinder

From the above paragraphs as cited from the Court’s Ruling, it is not in doubt that the  joinder of the  Proposed Interested party  was not allowed based on the fact that it had not satisfied the Court that  it has sufficient interest over the suit property and it had only been speculating over the same. It is the Proposed Interested Party’s contention that it was not able to get the  proper information as it  had to file the   initial Application in a hurry. That it has since learnt that the   disparity between the Plaintiffs/ Respondent’s  Land reference that they are referring to and the Land Reference it is referring to  is based on the fact that they are using two different  survey maps  with the Plaintiff’s/ Respondents using the survey map  from   1956,while the same is not in use as it was changed in the year 1974. It has  further contended that it learnt of the above when the  Plaintiffs /Respondents  tried to  enter their land and they had a meeting. The said allegations by the proposed Interested Party have not been rebutted. Further the Court has seen the letters written to  the Defendants/ Respondents and to the Plaintiff’s  counsel seeking  clarification on the same.

Having carefully perused the initial Application, I am satisfied that this was not information that was presented to  Court. It is quite clear that  the nexus between the land referenced numbers can only be established by a surveyor  and at this point the Court is satisfied that new and important information has been presented before it  and that the same was not within the knowledge of the applicant at the  time the Ruling was being made . In the case ofSalad Awale ….Vs…Provincial Police Officer, Coast & 3 Others [2018] eKLR the Court held that

34. However even if that was not absolutely the case, which I hold it is, the power of the court to order review is unfettered and the court has the power to order review for any sufficient reason not necessary for error or mistake apparent on the face of the record or discovery of new and important matter or evidence.  I may only add that the power for review is one of those residual powers of the court that it exercises so that injustice is not seen to prevail just because the court had delivered itself and time to appeal has lapsed or one was never pursued.  That is the character to be manifested by a court of law, at all times – to do justice and leave no disclosed harm brought to its attention without being remedied.

Having carefully considered the  facts and the circumstances of this case, the Court finds and holds that there is new and important evidence  that  has been produced and there is  sufficient reason to  warrant the Court review the previous  orders and allow the Proposed Interested party to be joined in the suit.

The Upshot of  the  above therefore is that the  Court finds the Application merited and the same is allowed with costs being in the cause.

It is so ordered

Dated, Signed and Delivered virtually at Murang’athis 21st day ofApril 2022.

L. GACHERU

JUDGE

Delivered virtually

In the presence of

……………………………..…….C/Ass

…………………………………..1st & 2nd  Defendant

…………………………………..1st – 5th Plaintiff

L. GACHERU

JUDGE