Wambui & another v Gatundu Nyakinyua Co Ltd & 2 others [2024] KEELC 6466 (KLR)

Wambui & another v Gatundu Nyakinyua Co Ltd & 2 others (Environment & Land Case 673 of 2017) [2024] KEELC 6466 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6466 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment & Land Case 673 of 2017

JG Kemei, J

October 3, 2024

Between

Moses Kamau Wambui

1st Plaintiff

Mwihaki Ndutire

2nd Plaintiff

and

Gatundu Nyakinyua Co Ltd

1st Defendant

Daniel Maina Karanja

2nd Defendant

Benson Maina Mwangi

3rd Defendant

Ruling

1. The 3rd Defendant/Applicant has moved this Court vide a Notice of Motion Application dated 23/3/2023 premised on Order 9 Rule 9, Order 12 Rule 7 & Order 3 of the Civil Procedure Rules, Sections 1A, 1B & 3A of the Civil Procedure Act, Section 68 of the Land Registration Act and Article 159 (2)d of the Constitution of Kenya seeking a raft of Orders namely;a.Spent.b.That in line with the consent annexed herewith between the outgoing and incoming Advocates, the firm of Nyambura Njuguna & Company be granted leave to go on record for the 3rd Defendant/Applicant in place of Karugu Mbugua & Company Advocates previously on record and annexed Notice of Change of Advocates be deemed as duly filed.c.That upon prayers 1 and 2 above being granted this Honorable Court be pleased to temporarily stay execution of Judgement rendered on 23rd February 2023 and decree dated 14th March 2023 herein pending the hearing and determination of this application inter partes and/or further orders of this Honorable Court.d.That this Honorable Court be pleased to issue an inhibition order inhibition the registration of any dealings with the suit land Gatuanyaga/ngoliba Block 1/1645 pending the hearing and determination of this application and/or further Orders of Court.e.That this Honorable Court be pleased to set aside the proceedings of 19th July 2022, 25th October 2022, resultant Judgment rendered herein on 23rd February 2023 and decree dated 14th March 2023 and allow the 3rd Defendant/Applicant to ventilate his defence on the merits.f.That this Honorable Court be pleased to grant the 3rd Defendant Benson Maina Mwangi leave to amend his defence, and/or file a list of witnesses, witness statements and list of documents.g.That such other orders as may be granted in prayers 3 and/or 4 above be served upon the Land Registrar Thika for compliance.h.That costs of this application be provided for.

2. The Motion is supported by the Affidavit of Benson Maina Mwangi the Applicant sworn on 23/3/2023. In this inelegantly drafted Affidavit, the deponent laments the mistakes of his former Counsel Karugu Mbugua & Co. Advocates who failed to inform him of the progress of the suit against him. He further deposed to the background of facts surrounding his purchase of the suit land leading to issuance of a title deed in his favor on 10/2/2020. That despite his Counsel filing a defence and dismissal of his application for adjournment on 19/7/2022, the Applicant avowed that he was not notified of the hearing date and now wishes to amend his defence. That the Plaintiffs will not suffer any prejudice that cannot be compensated by way of costs since they have not executed the decree. See annexure marked ‘exhibit 2’ a copy of the official search dated 21/3/2023.

3. The Application is contested by the Plaintiffs only vide the Grounds of Opposition dated 1/5/2023 filed by the 1st Plaintiff Moses Kamau Wambui who also swore his Replying Affidavit on 12/5/2023.

4. Terming the application as misplaced and an abuse of Court process, he deponed that Counsel for 2nd and 3rd Defendants was present in Court on 19/7/2022 when the suit was scheduled for hearing. That the said Counsel unsuccessfully sought for adjournment on two grounds to wit; he was attending to another hearing namely Election Petition No. E8258 (sic) of 2022 and that he intended to file an application to raise a plea of res judicata in light of another suit, ELC 718 of 2009. That upon Court declining the adjournment, the matter was set down for hearing at 9. 45 am in the absence of the 2nd and 3rd Defendants and /or their Counsel. Further that their Counsel unsuccessfully attempted to arrest the Judgment herein and therefore the instant application has been filed late in the day after execution of the Judgment. That the Applicant has a remedy in persona in proceedings for professional negligence against his Advocates; that the prayer for amendment of pleadings cannot issue now post-Judgment noting that pre-trial conference was concluded and no issue was raised prior to the hearing date. In the end he urged the Court to dismiss the application with costs.

5. In the Grounds of Opposition, the Plaintiffs resisted the application on twin grounds that;a.The order to proceed with the main hearing on the 19/7/2022 was premised on the ruling in which Counsel for 3rd Defendant was present as per the Court Coram of the day.b.That all the prayers sought in the application dated 23/3/2023 are incapable of being granted as they are premised on belief that the Court acted without evidence and/or further that between the 19/7/2022 and the 23/2/2023 the 3rd Defendant had opportunity to set aside proceedings and as well as arrest Judgment from being read which he failed to do otherwise exhibiting his indolence.

6. In a rejoinder, the Applicant filed a Further Affidavit dated 7/6/2024. He maintained that the failure of his Counsel to attend hearing ought not be visited upon him.

7. On 24/3/2023 directions were given for parties to prosecute the application by way of written submissions.

8. The Applicant had filed his submissions dated 26/4/2023 through the firm of Nyambura Njuguna & Co. Advocates. The Applicant posited that his application remains unopposed and therefore relied on it as filed. He cited the Court of Appeal case of Nbi C.A No. 20 of 2016 Patriotic Guards Vs. James Kipchirchir Sambu to urge the Court to allow setting aside of an ex parte Judgment. That his Counsel never informed him of the hearing thereby denying him a chance to ventilate his defence on merit. Lastly, that as a bona fide purchase for value, the cancellation of his title has greatly prejudiced him without being accorded fair hearing.

9. In his Supplementary submissions dated 9/5/2023, it was contended that the Plaintiffs having failed to file a Replying affidavit, they have not controverted the Applicant’s depositions in the Supporting Affidavit of the instant Motion. That the Applicant has outlined all reasonable steps he took to set aside the impugned Judgment upon learning of the same. That since there are status quo order, his application can be allowed to allow his case to be heard on merits as prayed and that the Judgment notice was never served upon his Counsel. That much as he can pursue professional negligence against his Counsel, that would not address the fact that he has lost ownership of the suit land.

10. Considering the record and material before Court, I distill the following issues for determination;a.Whether the firm of Nyambura Njuguna & Co. Advocates can be granted leave to come on record for the Applicant?b.Whether the Hon Court can grant stay of execution and/or issue an inhibition order over the suit land?c.Whether the Court can set aside the proceedings of 19/7/2022, 25/10/2022 and Judgment delivered on 23/2/2023?d.Whether the Applicant can be allowed to amend his defence?e.Who bears costs?

11. On the first issue, the legal underpinning for leave for Counsel to come on record post-Judgment is anchored in Order 9 Rule 9 (b) of the Civil Procedure Rules that;“9. Change to be effected by order of Court or consent of parties [Order 9, rule 9. ]When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after Judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be.”

12. The right to legal representation by Counsel of a party’s choice is a constitutional tenet to ensure fair hearing. A glean of the Plaintiffs’ Replying affidavit and Grounds of Opposition does not contain any objection to the instant prayer. I have seen the consent filed pursuant to Order 9 Rule 9 (b) of the Civil Procedure Rules annexed as ‘Exhibit 3’ dated 23/3/2023. It is duly signed by the outgoing firm of Karuga Mbugua & Co. Advocates and the incoming firm of Nyambura Njuguna & Co. Advocates. The prayer for leave for the firm of Nyambura Mjuguna & Co. Advocates is allowed and the notice for change of Advocates of even date is deemed as properly filed.

13. On the second issue, the power of Court to grant stay of execution is provided for under Order 42 rule 6 of the Civil Procedure Rules that;“6. Stay in case of appeal [Order 42, rule 6. ]1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate Court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the Court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.”

14. The jurisdiction to grant stay lies at the discretion of this Court and is exercised on the basis of sound and settled principles, not arbitrarily or capriciously on a whim or in consideration of any extraneous matters. In the case of Butt v Rent Restriction Tribunal [1982] KLR 417 the Court of Appeal gave guidance on how a Court should exercise discretion in an application for stay of execution and held that: -“1. The power of the Court to grant or refusal an application for a stay of execution is a discretion of power. The discretion should be exercised in such a way as not to prevent an appeal.2. The general principle is granting or refusing a stay is: If there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion. (sic) (trial Court Judgement).3. A judge should not refuse a stay if there is a good ground for granting it merely because in his opinion a better remedy may be available to the Applicant at the end of the proceedings.4. The Court in exercising its powers under order XLI rule 4 (2) (b) of the civil procedure Rules can order security upon application by either party or on its own Motion. Failure to put security of costs as ordered with cause the order for stay of execution to lapse.”

15. Has the Applicant satisfied the conditions set on Order 42 rule 6 (2) of the Civil Procedure Rules above? The Applicant contends that the impugned Judgment was as a result of his Advocate’s failure to inform him of the progress of his suit. That he is on verge of losing the suit land which according to him, he acquired as a bona fide purchaser for value.

16. On whether the application was timeously filed, I note that the application was filed on 23/3/2023, a month after the delivery of the impugned Judgment. It is not inordinate. Lastly the Applicant deposed that she is ready and willing to abide by terms of security if so ordered by the Court.

17. In my view, the Applicant has failed to prove substantial loss he stands to suffer if the stay of execution is not granted. Whereas the failure to attend Court for the hearing is attributed to his Counsel, there is a valid Judgment in favor of the Plaintiffs who are entitled to enjoy its fruits. Further it is a commonly accepted that there are status quo orders herein which are explicit that the 2nd Plaintiff is now the registered owner of the suit land. The Applicant’s argument that the Judgment has not been in executed therefore falls on the wayside. The same fate befalls the Applicant’s position that his Application is unopposed because the record is explicit that it is opposed.

18. It is trite that execution on its own is does not amount to substantial loss because it is a lawful process. See the case of James Wangalwa & Another Vs. Agnes Naliaka Cheseto [2012] eKLR. In that case the Court emphasized that an Applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of his appeal in case the appeal succeeds.

19. The prayer for stay of execution of the Judgement is thus unmerited.

20. Contemporaneous to Issue 2, the Court’s power to issue an inhibition is set out in Part VII Section 68 of the Land Registration Act, 2012 as follows;“68. Power of the Court to inhibit registered dealings(1)The Court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.(2)A copy of the inhibition under the seal of the Court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register.(3)An inhibition shall not bind or affect the land, lease or charge until it has been registered.”

21. In the legal parlance, inhibition orders would take the form of and result from an order of injunction where a party moves a Court for it for fear of losing the subject matter, before the determination of the rights of the parties, may be transferred or wasted. Indeed, the nature of an inhibition order is that it is usually issued at the interlocutory stage of proceedings in a matter before a Court of competent jurisdiction. In the case of Dorcas Muthoni & 2 Others Vs. Michael Ireri Ngari (2016)eKLR, the Court held that :-“An order of inhibition issued under Section 68 of the Land Registration Act is similar to an order of prohibitory injunction which bars the registered owner of property under dispute from registering any transaction over the said property until further orders or until the suit in which the said property is a subject is disposed off. The Court issuing such an order must be satisfied that the Applicant has good grounds to warrant the issuance of such an order because, like an interlocutory injunction, such an order preserves the property in dispute pending trial.”

22. As already stated, it is not in dispute that this Court delivered its Judgment on 23/2/2023. Further that the said Judgment is valid and binding and indeed executed by registration of the 1st Plaintiff as the owner in satisfaction of this Court’s decree. Bearing in mind the doctrine of functus officio, it is trite therefore that the Court completed its work and as a result it does not have the jurisdiction to issue such Inhibition orders as prayed by the Applicant. Any grievances emanating from the impugned Judgment can only be expressed on appeal or Review.

23. With respect to issue Number 3, the Court is called upon to answer the question whether the Applicant satisfied the threshold for setting aside proceedings and Judgment? I am afraid not. This prayer is premised on this Court’s discretionary power to set aside proceedings and attendant Judgment dated 23/2/2023.

24. The legal provision of setting aside Judgment is anchored in Order 12 rule 7 of the Civil Procedure Rules that;“7. Setting aside Judgment or dismissal [Order 12, rule 7. ]Where under this Order Judgment has been entered or the suit has been dismissed, the Court, on application, may set aside or vary the Judgment or order upon such terms as may be just.”

25. It is trite that setting aside of ex parte Judgments under this Rule is a discretionary exercise of the Court. In the celebrated case of Shah Vs. Mbogo (1979) EA 116, the Court gave guidelines on the exercise of discretion. It states thus;“I have carefully considered in relation to the present application the principles governing the exercise of the Court’s discretion to set aside a Judgment obtained exparte. This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.”

26. Additionally, in the case of Patel Vs. EA Cargo Handling Services Ltd (1974) E A 75 the Court stated as follows;“There are no limits or restrictions on the judge’s discretion to set aside or vary an ex parte Judgment except that if he does vary the Judgment, he does so on such terms as may be just. The main concern of the Court is to do justice to the parties and the Court will not impose conditions on itself to fetter the wider discretion given to it by the rules.”

27. The instant suit was filed way back on 24/7/2017. The first Plaintiff witness took the stand on 5/10/2020. On 2/12/2020 the Plaintiffs’ Counsel informed the Court that there were new developments touching in the registration/dealings on the suit land that necessitated joinder of a new Defendant (the Applicant). See the Application dated 20/1/2021. Later in the same year, it emerged that the 2nd – 4th Defendants were deceased and on 6/9/2021 and there being no objection, the Application dated 20/1/2021 was allowed as prayed. The suit was later slated for hearing on 14/6/2022 but was adjourned on account of 1st Defendant’s Counsel illness. The Court marked the adjournment as a last one and set the next hearing date for 19/7/2022. On the said date the parties were ready to proceed except for the Applicant’s Counsel who told the Court that he had another matter to attend to; Election Petition No. E68 of 2022 in Nairobi and besides, that he intended to raise a plea of res judicata in the suit. The Court declined the application for adjournment and set the hearing time 10. 30 am when the suit was heard in the absence of the 3rd Defendant and/or his Counsel.

28. On 25/10/2022 the matter was mentioned to confirm filing of submissions prior to delivery of Judgment. Again, in the absence of the 3rd Defendant and/or his Counsel, the Judgment was reserved for 23/2/2023 when it was so delivered. There is no evidence of any attempts taken by the 3rd Defendant or his Counsel to set aside the ex parte proceedings or arrest Judgment before 23/2/2023.

29. At para. 3 of his Supporting Affidavit the Applicant averred as follows;“That noting the Advocate was not giving me any specific details on the progress of the matter and being quite concerned. I gave the case number to a young man a son of my late neighbor named Kennedy Njore who is undertaking law school at Kenya School of law but is on break and asked him to see if he could enquire of the position of the matter at the Court registry now that he had a measure of exposure to leag matters. This was sometime late in the week ending 17th March 2023. ”

30. In my view, the steps taken by the Applicant to instruct the said Kennedy are not sufficient for a litigant who is keen on prosecuting his case. No evidence was tendered to augment the averments touching on the said Kennedy, if at all. The Court of Appeal in Beltrami Vs. Mtwapa Bay Investments Ltd [2024] KECA 78 (KLR) was emphatic that;“This Court has time without number pronounced itself on the principle that mistake of Counsel does not avail excuses to a litigant whose hands are soiled with procedural transgressions. The Court in Habo Agencies Limited Vs. Wilfred Odhiambo Musingo [2015] eKLR had this to say:“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by Counsel.”

31. The same Court in the case of Osoro Vs. Madzayo [2024] KECA 636 reiterated that a case belongs to a litigant’s case and not to his Counsel.

32. It is trite that under Order 8 of the Civil Procedure Rules, amendments of pleadings can be done at any time before Judgment is delivered. The issue for determination is whether the Court should allow the application for amendment of the defence and counterclaim. The general power to amend pleadings draws from Section 100 of the Civil Procedure Act. Parties to a suit also have a right to amend their pleadings at any stage of the proceedings, albeit that right is not absolute, for it is dependent upon the discretion of the Court. However, this discretion should be exercised judiciously and in line with criteria set out under Order 8 Rule 3 of the Civil Procedure Rules.

33. Order 8 rule 5 of the Civil Procedure Rules provides as follows: -“For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the Court may either of its own Motion or on the application of any party order any documents to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.”

34. The Court has the power to amend pleadings which power can be exercised at any stage of the proceedings before Judgment as per Bullen and Leake & Jacob's Precedents of Pleading, 12th Edition, which provides as follows concerning amendment of pleadings:“… Power to so amend can be exercised by the Court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action…”

35. In the instant case there are no live proceedings before this Court in view of the Judgment rendered. The prayer for setting aside for proceedings having failed, the consideration for amendment of the defence and counter claim is now moot.

36. The Applicants sought for leave to amend their Defence and Counterclaim so as to capture the latest issues raised in the amended Plaint which will help in the determination of all the issues in controversy.

37. Final Orders:a.Prayer No. b is allowed.b.Order of stay of execution of Judgment is disallowed.c.Order for inhibition denied.d.Order to set aside proceedings and Judgment disallowed.e.Order for amendment of defence disallowed.f.Costs in favour of the Plaintiffs/Respondents.

38. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 3RD DAY OF OCTOBER, 2024 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;1st and 2nd Plaintiffs – Absent1st and 2nd Defendants – AbsentMrs. Mangwa for 3rd DefendantCourt Assistants – Phyllis/Oliver