Wachira Githinji & Gatahi Githinji v Kanothi Githinji [2019] KEELC 3860 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYERI

ELC CASE NO. 91 OF 2016

(Formerly Nyeri HCCC 70 OF 2010)(O.S)

IN THE MATTER OF

L.R. NO. KIRIMUKUYU/GACHUIRO/256

AND

IN THE MATTER OF ORDER XXXVI RULE 1

OF THE CIVIL PROCEDURE RULES

BETWEEN

WACHIRA GITHINJI.................................................................1ST PLAINTIFF

GATAHI GITHINJI ...................................................................2ND PLAINTIFF

VERSUS

KANOTHI GITHINJI....................................................................DEFENDANT

RULING

1. The application filed by Wanderi Muthagani advocate for the defendant, is dated 27th February, 2019.  It seeks review and amendment of the following sections of the judgment dated 26th September, 2018;

(i) In(a)Paragraph 21 line 3 by deletion of the word    “plaintiff” and substitution therefore with the word “defendant”

(b)  Paragraph 22 lines 2 and 7 by deletion of the words “plaintiff” and substitution therefore with the word “defendant”

(c)  Paragraph 24 lines 2 and 10 by deletion of the words “plaintiff” and substitution therefore with the word “defendant” and “defendant’s” respectively

(d)  Paragraph 27 lines 1 by deletion of the    word “plaintiff” and insertion of the word “defendant”

(ii) In the following paragraphs;

(a) Paragraph 24 line 7 by deleting the word “defendants’ ” and substituting therefore the work “plaintiffs’ ”

(b) Paragraph 24 line 9 by deleting the word “defendants” and substituting therefore the work “plaintiffs”

(c) Paragraph 24 line 2 by deleting the word “defendants” and substituting therefore the work “plaintiffs”

2. The application is premised on the fact that there is confusion in the judgment because the court erroneously used the words plaintiff and defendant interchangeably.

3. The application is not opposed. Counsel for the plaintiff/respondent was served with the application and acknowledged receipt on 27th February, 2019 but did not file any response to the application or attend court for hearing of the application.

4.  I have looked at the judgment and the sections pointed out by counsel for the applicant which    are said to have mistakes.  I wish to point out   that what was before the court for determination was the defendant’s counterclaim and not the plaintiffs case which was dismissed for want of prosecution on 24th September, 2013. Under the circumstances, the defendant in the main suit became the plaintiff in the counter-claim and the plaintiffs in the main suit became the defendants in the counter-claim.  In light of the above, I find that some parts of the judgments have errors which I regret. In exercise of the power of the court under Section 99 of the Civil Procedure Act, (Cap 21 Laws of Kenya), the Judgment of this court delivered on 26th September, 2018 is hereby corrected as follows:-

Page 7:   Paragraph 14 is: When the defendant’s (hereinafter referred to as the plaintiff in the counter-claim)   suit  came   up   for   hearing, counsel for the plaintiffs (hereinafter  referred  to  as  the  defendants in the counterclaim), Mr. Kingori, informed the court that he had since ceased acting for the defendants and transferred the file to Mr. Kimunya who had taken over the matter from him not When the defendant’s suit came up for hearing, counsel for the plaintiffs, Mr. Kingori, informed the court that he had since ceased acting for the plaintiffs and transferred the file to Mr. Kimunya who had taken over the matter from him.

Page 8:  Paragraph 15 is: Because counsel for the plaintiff insisted on  his client being heard citing the advanced age of his client and the delay in conclusion of the matter, the court placed the file aside to give Mr. King’ori time to contact Mr. Kimunya not Because counsel for the defendant insisted on his client being heard citing the advanced age of his client and the delay in conclusion of the matter, the court placed the file aside to give Mr. King’ori time to contact Mr. Kimunya.

Page 8:  Paragraph 16 is: Because neither Mr. King’ori, Mr. Kimunya or their clients were in court when the matter was later called for hearing, the court allowed the plaintiff to prosecute his counter claim not Because neither Mr. King’ori, Mr. Kimunya or their clients were in court when the matter was later called for hearing, the court allowed the defendant to prosecute his counter claim.

Page 8:   Paragraph 17 is: The plaintiff who is advanced in age (he is 90 years old) informed the court that the defendants are his younger siblings; that the defendants had instituted the suit herein claiming that he holds the suit property in trust for them; that he filed a replying affidavit denying the defendants claim and explained  how  he  obtained  the  suit  property. In September, 2013 he  attended  court for hearing of the defendants’ case and because the defendants (plaintiff in the  main suit) did not attend court their case was dismissed. He produced the documents listed in his list of documents as Dexbt 1to4and urged the court to grant him an order for eviction of the defendants and their families from the suit property not The defendant who is advanced in age (he is 90 years old) informed the court that the plaintiffs are his younger siblings; that the plaintiffs had instituted the suit herein claiming that he holds the suit property in trust for them; that he filed a replying affidavit denying the plaintiffs claim and explained  how  he  obtained  the  suit  property. In September, 2013  he  attended  court for hearing of the plaintiffs’ case and because the plaintiffs did not attend court their case was dismissed. He produced the  documents listed  in  his  list  of documents  as Dexbt  1to 4and  urged  the court to grant him an order for eviction of the plaintiffs and their families from the suit property.

Page 9:   Paragraph 18 line 1 is: The plaintiff, through his advocate, filed submissions which I have read and considered not The defendant, through his advocate, filed submissions which I have read and considered

Page 9:   Paragraph 19 is: From the pleadings and the submissions filed, this court finds the sole issue for determination to be whether the plaintiff has made up a case for being granted the orders sought or any of them not From the pleadings and the submissions filed, this court finds the sole issue for determination to be whether the defendant has made up a case for being granted the orders sought or any of them.

Page 9:   Paragraph 20 is: Concerning that issue, from the documents  produced  by  the  plaintiff,  in particular a copy of title deed and certificate   of official search, it is clear that the plaintiff   is the registered proprietor of the suit pro-  perty not Concerning that issue, from the documents produced by the defendant, in particular a copy of title deed and certificate of official search, it is clear that the defendant is the registered proprietor of the suit property.

Page 12: Paragraph 25 is; For the foregoing reasons, I find and hold that the plaintiff has made up a case for being declared the exclusive owner of the suit property and for eviction of the defendants from the suit property not For the foregoing reasons, I find and hold that the plaintiff has made up a case for being declared the exclusive owner of the suit property and for eviction of the plaintiffs from the suit property.

Save as aforesaid, the said judgment is affirmed and reiterated herein.

Dated, signed and delivered at Nyeri this 27th day of March, 2019.

L N WAITHAKA

JUDGE

Coram:

N/A for the plaintiffs

N/A for the defendants

Court assistant - Kimeli