Malombe v Munyalo

and one, Mukai Musyoka (hereinafter referred to as “the Kitui case”). In the Kitui case, the plainti sought a declaration that he was the legal and equitable owner of the portion of Plot No 533 that he had purchased from the deceased and general damages. In the alternative, the plainti sought a sum of Kshs.120,000/- being a refund of the purchase price he had paid to the deceased inclusive of interest and damages he was likely to incur as a result of losing the property. The Kitui case was defended by the deceased and the said Mukai Musyoka to whom the deceased was said to have re-sold the property. The case was heard and a judgment was delivered on 24th February 1998. The Kitui court made a nding that the plainti had purchased a portion of Plot No 533 from the deceased and had occupied the same from 1997. The court made a declaration that the plainti had acquired equitable title under the Limitation of Actions Act, Chapter 22 Laws of Kenya over the portion of Plot No 533 which he purchased from the deceased. The court however declined to make an order for the transfer of the said property to the plainti on the ground that the order could only be made by the High Court under Section 38(1) of the Limitation of Actions Act and Order XXXVI rule 3D of the old Civil Procedure Rules. The court directed the plainti to make an appropriate application to the High Court for that purpose. The claim against the deceased’s co-defendant Mukai Musyoka was dismissed with costs. The plainti was awarded the costs of that suit against the deceased. 3. The plainti brought the present suit against the deceased and his two brothers who were coproprietors of Matinyani/Kisaini/533 (“Plot No 533”) on October 24, 2003 seeking a declaration that the title that was held by the deceased in respect of 1/3 portion of Plot No 533 was extinguished by the plainti’s adverse possession of the said parcel of land for more than 12 years and that the deceased’s claim in respect thereof was statute barred under Section 7 of the Limitation of Actions Act, Chapter 22 Laws of Kenya. The plainti sought a further order that he be registered as the proprietor of 1/3 portion of Plot No 533 (hereinafter referred to as “the suit property”) in place of the deceased and that the deceased and his co-proprietors be ordered to cause the sub-division of Plot No 533 into three portions so that the deceased’s 1/3 portion thereof (hereinafter referred to only as “the suit property”) could be transferred to the plainti. The plainti’s suit before the court which was brought by way of Originating Summons was supported by the plainti’s adavit sworn on October 21, 2003 in which the plainti stated how he acquired the suit property from the deceased and occupied the same from 1977 to 1991 continuously and peacefully. The deceased and his co-proprietors of Plot No 533 entered an appearance and led separate replying adavits to the Originating Summons. In his replying adavit sworn on March 18, 2004, the deceased admitted that he sold the suit property to the plainti in 1977. He contended however that the plainti delayed in the payment of the purchase price as a result of which he was forced by the circumstances to resell the same property to a third party, one Mukai Musyoka who had already taken possession and settled on the land. The deceased denied that the plainti had taken possession of the suit property and had occupied the same continuously between 1977 and 1991. The deceased denied that the plainti had acquired the suit property by adverse possession. The deceased contended that his co-proprietors of Plot No 533 had supported the plainti’s claim because of the dierences he had with them concerning Plot No 533. 4. The deceased brothers, Mukunga Mulandi and Kavulu Mulandi who were also co-proprietors of Plot No 533 led a replying adavit on December 11, 2003 sworn by Mukunga Mulandi on December 6, 2003 in which they both supported the plainti’s claim against the deceased. While this suit was pending hearing, Plot No 533 was sub-divided and the portion thereof that was sold by the deceased to the Plainti was given a land reference number Matinyani/Kasaini/1305 (also referred to as “the suit property”) and registered in the name of the deceased on October 5, 2011. The sub-division was carried out after the death of the deceased on April 9, 2006. The Grant of Letters of Administration in respect of the estate of the deceased was issued to his wife, Wango Munyalo on November 8, 2011. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18083/eng@2023-06-12 2

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5. On October 14, 2015, the plainti amended the Originating Summons and substituted the deceased’s wife, Wango Manyalo as the defendant in place of her deceased husband, Samuel Munyalo Mulandi. The plainti also discontinued his claim against the hitherto co-proprietors Plot No 533, Mukunga Mulandi and Kavulu Mulandi. In the amended Originating Summons, the plainti’s adverse possession claim was directed at the new parcel of land, Matinyani/Kasaini/1305 (“the suit property”). The amended Originating Summons was served upon the deceased’s wife, Wango Munyalo who was now the sole defendant but she did not respond to the same. When the suit came up for hearing on February 22, 2018, the deceased wife, Wango Munyalo (hereinafter referred to only as “the defendant”) did not appear in court despite service having been eected upon her. The plainti gave evidence and called one witness, Charles Musya Kikungu (PW 2). In a judgment delivered on 31st January 2019, the court entered judgment for the plainti against the defendant on the following terms; 1. That a declaration is hereby issued that the interest and/or title held by the deceased in respect of 1/3 portion of Title No Matinyani/Kasaini/533(which after subdivision was assigned Title No Matinyani/Kasaini/1305) was extinguished by the plainti’s adverse possession of the said parcel of land for more than 12 years and that the deceased’s claim in respect thereof was statute barred under Section 7 of the Limitation of Actions Act, Chapter 22 Laws of Kenya. 2. That the plainti be registered as the proprietor of Title No Matinyani/Kasaini/1305 under section 38 of the Limitation of Actions Act, Chapter 22 Laws of Kenya. 3. That each party to bear its own costs. In the said judgment the court stated as follows in part: “On the evidence before me, I am satised that the plainti has proved his claim against the defendant. The plainti led evidence that he bought the suit property from the deceased in 1977. He paid the purchase price in full. The deceased gave him vacant possession of the property. He took possession and remained in occupation until 1991 when the deceased purported to rescind the agreement for sale and to resell the suit property to a third party who moved to the property and dispossessed the plainti of the same. This development led to the ling of the Kitui Case by the plainti against the deceased and one, Mukai Musyoka to whom the deceased was said to have resold the suit property. In the judgment that was delivered on 24th February, 1998, the Kitui Court made a nding of fact that the plainti had purchased the suit property from the deceased in 1977 and that the plainti had been in occupation of the property from 1977 up to the time the suit was led. The Kitui court also made a nding that the plainti had established that he was the equitable owner of the suit property having occupied the same since 1977 and made a declaration to that eect. These ndings by the Kitui court have neither been varied nor set aside. Upon assessment of the evidence before me, I have reached the same conclusion. The plainti has established that he entered the suit property in 1977 after purchasing the same from the deceased, he fenced the same, put up a temporary structure thereon for his herdsman and used the property for grazing his cattle until 1991 when he was dispossessed of the property by a third party to whom the deceased is said to have resold the suit property. I am satised that the plainti has established the ingredients of adverse possession claim that were set out in the cases of Ann Iumbi Kiseli v James Muriuki Muriithi (2013) eKLR, Wambugu v Njuguna (1983) KLR 173 and Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR which were cited by the plainti in his submissions.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18083/eng@2023-06-12 3

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6. What is now before me is the Notice of Motion application dated February 19, 2020 seeking the following orders; 1. That this court be pleased to review and set aside the judgment delivered herein on January 31, 2019 and the decree issued thereafter on October 2, 2019. 2. That the costs of the application be provided for. 7. The application that was supported by the adavit of the defendant sworn on January 19, 2019 was brought on several grounds. The defendant contended that this suit is res judicata since the dispute between the parties over the suit property was fully and nally determined in Machakos High Court Civil Appeal No 23 of 1998(hereinafter referred to as “the Appeal Case”) and as such this suit was irregularly led and the impugned judgment should be set aside. The defendant averred that the Appeal Case was determined in favour of the deceased on June 20, 2003. The defendant averred that the application was brought without unreasonable delay soon after the defendant learnt of the judgment of the court. In her adavit in support of the application, the defendant annexed a copy of the Appeal Case judgment as an exhibit. 8. The application was opposed by the plainti through a replying adavit sworn on June 26, 2020. The plainti averred that the judgment in the Appeal Case was not a new or important matter or evidence that was not within the knowledge of the defendant when the impugned judgment was made. The plainti averred that since the judgment in the Appeal Case was known to the defendant all along, it did not qualify as new evidence. The plainti averred that the defendant did not explain why the said judgment in the Appeal Case was not brought to the attention of the court before the delivery of the impugned judgment. The plainti averred that the decision in the Appeal Case was made on the basis that the lower court (Kitui case) did not have jurisdiction to entertain the plainti’s claim before it. The plainti averred that the issues in dispute between the plainti and the defendant were not determined on merit in the Appeal Case judgment and as such this suit was not res judicata. The plainti averred further that the judgment in the Appeal Case dealt with Title No Matinyani/Kasaini/533 which measured 43.0 hectares while this case after amendment dealt with Title No Matinyani/Kasaini/1305 measuring 11.74 hectares. 9. The plainti averred further the defendant took up to 13 months to bring the present application after the judgment sought to be reviewed. The plainti averred that the inordinate delay was not explained. The plainti averred that the conduct of the defendant militated against the exercise of the court’s discretion in her favour. The plainti averred that after she was substituted in this suit as a defendant, the defendant chose to ignore the court and never participated in the proceedings. The plainti averred that it was unjust for the defendant to wait until a judgment was made in this suit which had been in court since 2003 for her to wake up and seek a review of the same. 10. The defendant’s application was heard by way of written submissions following the directions that were given by the court on July 30, 2020. The defendant never led submissions while the plainti led submissions dated March 7, 2022. The plainti cited Republic v Public Procurement Administrative Board & 2 others [2018]eKLR, and submitted that review jurisdiction can only be exercised; on the ground of discovery of new and important matter or evidence, on account of some mistake or error apparent on the face of the record or for any other sucient reason. The plainti submitted that the application must also be made without unreasonable delay. Starting with the last condition, the plainti submitted that a delay of 4 months to bring an application for review after learning of the existence of the judgment was inordinate. The plainti cited several cases in which a delay between 4 to 7 months in bringing an application for review was found by the courts to be inordinate. The plainti submitted that no explanation was given for the delay. On the issue of res judicata, the plainti https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18083/eng@2023-06-12 4

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submitted that even if this suit was res judicata which was not admitted, that would not be a valid ground for the review sought. The plainti submitted that that fact was not a new matter or evidence which was not in the defendant’s knowledge. The plainti submitted that the defendant was duly served with the court papers and the deceased participated in the suit through an advocate. The plainti submitted that after the death of the deceased and the substitution of the deceased with the defendant, the defendant was served with hearing notices on several occasions. The plainti submitted that the defendant did not seize the opportunity to bring to the attention of the court the alleged important evidence. 11. The plainti submitted that in any event, the judgment in the Appeal Case did not make this suit res judicata. The plainti submitted that on the face of the said judgment, it was clear that the appeal was not determined on merit. The plainti submitted that the issue of whether or not adverse possession had been established was not determined in the said judgment in the Appeal Case. The plainti submitted that this suit could not therefore be res judicata. In conclusion, the plainti submitted that the defendant’s application was without merit as it was not brought timeously and there was no new and important matter or evidence which had been discovered by the defendant. Analysis and determination: 12. I have considered the defendant’s application together with the adavit led in support thereof. I have also considered the replying adavit led by the plainti in opposition to the application and the submissions by the plainti since the defendant did not le any. The only issue arising for determination in the application before me is whether a sucient basis has been laid by the defendant to justify a review of the judgment delivered herein on January 31, 2019. The court’s power to review its orders and decrees is provided for in section 80 of the Civil Procedure Act under which the defendant’s application has been brought as follows: "Any person who considers himself aggrieved – 13. 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 judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks t.” Order 45 of the Civil Procedure Rules lists specic grounds upon which an application for review can be made as follows: 14. a. “Where there is a new and important matter or evidence which after exercise of due diligence was not within the knowledge of an applicant at the time the decree was passed. b. Where there is a mistake or error apparent on the face of the record. c. For any other sucient reason.” The Court of Appeal set out the requirements to be satised by an applicant seeking review in Francis Origo & another vJacob Kumali Mungala, Eldoret CA No 149 of 2001[2005]eKLR as follows: “…it is clear that an applicant has to show that there has been discovery of new and important matter or evidence which after due diligence, was not within his knowledge or could not be https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18083/eng@2023-06-12 5

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produced at that time or he must show that there is some mistake or error apparent on the face of the record or that there was any other sucient reason. And most importantly, the applicant must make the application for review without unreasonable delay.” 15. Similarly, in Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints, Nairobi C.A 132 of 2014[2016]eKLR, the requirements were set out as follows: “To qualify for a review there are stringent requirements to be met. For instance the applicant must demonstrate that as a matter of right he can appeal but has not exercised that option; that no appeal lies from the decree with which he is dissatised; or that he has discovered a new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced when the order was made; or that there is a mistake or error apparent on the face of the record; or that there are sucient reasons to warrant the review. It is also a requirement that the application for review must be brought without unreasonable delay.” 16. The scope of the court’s jurisdiction to review its own orders was dened in John Kamau Ruhangi v Kenya Reinsurance Corporation, Civil Appeal No 208 of 2006[2012]eKLR as follows: “It is important to bear in mind that Order 44 Rule 1 of the Civil Procedure Rules sets out the purview of the review jurisdiction. A point outside that purview is not a ground for review. A point which may be a good ground of appeal like an erroneous view of law or evidence is also not a ground for review. That a court reached an erroneous conclusion because it proceeded on an incorrect exposition of the law or misconstrued a statute or other provision of law is no ground of review. All these are grounds of appeal.” 17. The defendant did not come out clearly in the application as to the basis or ground upon which the review was sought. The fact that she did not le submissions did not help the situation. The issue raised as the basis for the application was that this suit was res judicata and as such the same ought not to have been entertained by the court. I will assume that the review was sought on the grounds of discovery of new and important matter or evidence and for sucient reasons. On the discovery of new important matter or evidence, I am in agreement with the plainti that the judgment in the Appeal Case was all along within the knowledge of the defendant. The judgment was delivered on June 26, 2003 a few months before the ling of this suit on October 24, 2003. The said Appeal Case was led by the deceased who was substituted herein by the defendant and the judgment was in his favour. When this suit was led, the deceased who won the Appeal case was still alive and defended this suit through an advocate. The issue of the judgment in the Appeal Case was not raised although it was within the knowledge of the deceased. After the death of the deceased and his substitution herein by the defendant, the defendant for reasons only known to her failed to participate in the hearing of this suit despite several notices served on her. In the circumstances, she also did not raise the issue of the said judgment in the Appeal Case which the court presumes was within her knowledge as a legal representative of the deceased. I am in agreement with the submission by the plainti that the said judgment was therefore not a new important matter or evidence that was not within the knowledge of the defendant after due diligence. It is therefore not a ground for review. 18. I am also in agreement with the plainti that even if the said judgment was a new and important matter or evidence, it would not justify a review of the judgment made herein on January 31, 2019. This is because the said judgment in the Appeal Case did not render this suit res judicata. As correctly submitted by the plainti, the deceased appeal in the Appeal Case succeeded on the single ground that the Magistrate’s Court at Kitui in the Kitui case did not have jurisdiction to determine the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18083/eng@2023-06-12 6

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issue of adverse possession. In the judgment of this court sought to be reviewed, the issue that the court determined was whether the plainti had acquired the suit property by adverse possession. The Magistrate’s Court did not determine the issue as it had no requisite jurisdiction. The court in the Appeal Case did not also determine the issue save for the nding that the Magistrate’s Court had no jurisdiction to deal with the issue. This suit which was led by the plainti to assert his adverse possession claim over the suit property was in the circumstances not res judicata. I therefore nd no merit in the defendant’s res judicata argument as a basis for review of the judgment made herein. I have held that the said judgment in the Appeal Case is not a new and important matter or evidence and that the same did not render this suit res judicata. I am also not persuaded that the said judgment in the Appeal Case is a sucient reason to review the judgment delivered herein. The defendant’s application therefore fails on both grounds on which it was brought. 19. The defendant’s application also fails for the reason that the same was brought after an inordinate delay that was not explained. The judgment sought to be reviewed was delivered on January 31, 2019. The application before the court was led over 1 year later on February 19, 2020. The defendant averred that she learnt of the judgment made herein in October 2019. Even if that was the case, no explanation was given for the delay of 4 months before the ling of the application. It is therefore my nding that the defendant’s application was led after inordinate delay and that also disentitles the defendant to the relief sought. In the nal analysis, I nd no merit in the Notice of Motion application dated February 19, 2020 which I hereby dismiss. I will deny the plainti the costs of the application because he concealed to the court the existence of the judgment in the Appeal Case which was within his knowledge. If he had disclosed the same, the court would have considered its eect in the judgment of January 31, 2019 and the present application would not have been led. Each party shall bear its own costs of the application. DELIVERED AND DATED AT KISUMU THIS 12TH DAY OF JUNE 2023 S. OKONG’O JUDGE Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of; N/A for the Plainti N/A for the Defendant Ms. J. Omondi-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18083/eng@2023-06-12 7

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