Amolo & 3 others v Chunga & 4 others

Maranda/4317, 4318, 4319, 4320, 4321 and 4322 being land parcels arising from the original title North Sakwa/Maranda/40 until the decree of this court is enforced in terms of the proposals sought in the present application for review of the judgment of this court made on 16/02/2023. d) That the honourable court be pleased to review its judgment entered on 16/02/2023 as follows: i. That within 90 days from the date of judgment, a subdivision and transfer be conducted by the county land registrar, Siaya within Bondo subcounty to survey, ascertain and excise a portion measuring 4 Ha within North Sakwa/Maranda/4317 for purposes of registration in the plaintis’ favour; and ii. In default of order (i) above, the Deputy Registrar or authorised oce do execute all the necessary documents to confer a portion measuring 4 Ha within North Sakwa/Maranda/4317 to the plaintis. e) That this honourable court be pleased to grant such other orders as shall meet the ends of justice in the circumstance; and f) That costs be borne by the defendants. 2. The motion was premised on the grounds enumerated on its face and on the annexed adavit of the 2nd plainti Simon Otoko Amolo sworn on 10/03/2023. 3. It was their case, in violation of the doctrine of lis pendens, the defendants subdivided North Sakwa/Maranda/40 (‘suit property’). The suit property had been subdivided to create land parcel numbers North Sakwa/Maranda/4317, 4318, 4319, 4320, 4321 and 4322 (‘subdivisions’). The portion the court had entered judgment in their favour lay in the portion now known as North Sakwa/ Maranda/4317. 4. The subdivisions took place after the suit had been reserved for judgment. They discovered the subdivisions post judgment hence the judgment was unenforceable. Defendants’ case 5. In opposition, the defendants’ counsel led grounds of opposition dated 21/03/2023 in which he asserted the subdivisions were made pursuant to a conrmation of grant issued in Bondo PM SC no. 85 of 2017. The motion would alter the grant and it amounted to abuse of court process. 6. Additionally, the 1st defendant swore an undated replying adavit averring the plaintis had been privy of the probate proceedings. The plaintis had not satised the portion of land that was rendered in their favour stood within North Sakwa/Maranda/4317. They urged the court to dismiss the motion. Plaintis’ submissions 7. Their counsel, Mr Odongo, led written submissions dated 14/03/2023. He reiterated the averments made in the 2nd plainti’s adavit. Counsel submitted the review of a decision was anchored in Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. 8. To buttress his position on the doctrine of lis pendens, counsel relied on Mawji v US International University & another [1976] KLR 185 where Madan, J.A. stated: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18274/eng@2023-06-19 2

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‘Every man is presumed to be attentive to what passes in the Courts of justice of the State or Sovereignty where he resides. Therefore, purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice in point of fact aects the purchaser in the same manner as if he had such notice, and he will accordingly be bound by the judgment or decree in the suit.’ Defendants submissions 9. Their counsel, Mr Siganga, led their submissions dated 31/03/2023. He reiterated some of the grounds of opposition and the averments made in the replying adavit. 10. Counsel submitted the motion was irregular because a decree had not been annexed to it. He relied on the persuasive decision of Hosea Nyandika Mosagwe & 2 others v County Government of Nyamira [2022] eKLR which cited with approval Suleiman Murunga v Nilestar Holdings Limited & Another (2015) eKLR that held: ‘No such a Decree was attached to the present Application which makes the Application fatally defective.’ Plaintis’ supplementary submissions 11. These further submissions dated 04/04/2023 were led by their counsel. Counsel submitted an annexation of a decree was irrelevant because it was already in the court record and the defendants would not be prejudiced. Further, a reading of the relevant statutory provision demonstrated it was not mandatory to annex a decree. He cited the Court of Appeal decision of Peter Kirika Githaiga & another v Betty Rashid [2016] eKLR. 12. Counsel submitted the copy of the map suced to indicate the plaintis’ portion of the suit property. Analysis and determination 13. Having carefully considered the motion, grounds of opposition, adavits and rival submissions, I shall be guided by the authorities and provisions of law that have been well cited by counsels. The issues that fall for determination are: a) Whether the motion was incompetent for failing to tender a decree. b) Whether the plaintis had met the threshold to warrant review of the orders that were issued in its judgment rendered on 16/02/2023. c) What orders should this court issue. a) Whether the motion was incompetent for failing to tender a decree 14. Order 45 Rule 1 of the Civil Procedure Rules provides: (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, https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18274/eng@2023-06-19 3

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or for any other sucient 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. 15. On application of this provision of law, the Court of Appeal in the case of Peter Kirika Githaiga & another v Betty Rashid (Supra) comprehensively analysed the reasoning of superior courts in requiring a decree be tendered before it when an application for review was the subject for determination. 16. After considering several decisions including those of the High Court and ELC one of them being Suleiman Murunga v Nilestar Holdings Limited (Supra) that was relied upon by Mr. Siganga, the Court of Appeal held; ‘As already stated Order 45 (1) does not expressly provide that an order or decree must be annexed to the application for review. The rule only provides that where a party is aggrieved by an order or decree, he may apply for review. Our understanding is then that, where a formal order or decree has not been extracted or attached to the application for review but a party is able to direct the court’s attention to that part of the ruling or judgment which he complains of, since such decision would be on the court le anyway, the application for review cannot be rendered fatally defective.’ 17. This decision is binding on this court and was rendered post Suleiman Murunga v Nilestar Holdings Limited (Supra). I note the orders the plaintis are seeking are clearly set out in the motion. The decree and the judgment are readily available. I need not say, I adopt the decision of Peter Kirika Githaiga & another v Betty Rashid (Supra) and nd the motion is competently before me. b) Whether the plaintis had met the threshold to warrant review of orders issued by this court in its judgment rendered on 16/02/2023. 18. The applicable provisions that govern review of court orders are encapsulated by Section 80 of the Civil Procedure ACT and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 states that; ‘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 judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks t.’ 19. When I reserved the matter for judgment on 7/12/2022, the suit property was North Sakwa/ Maranda/40. Unknowing to this court and the plaintis, the defendants with the sole aim of defeating the cause of justice, callously subdivided the suit property on 27/1/2023. When this court rendered its judgment, the suit property was non-existent. 20. It is obnoxious that the defendants are claiming that they were implementing the conrmation of grant. The grant was issued well before this suit was led. They had slept on it for close to four years but conveniently implemented it just before this court rendered its judgment. 21. A grant is amenable to amendment. Pursuant to the outcome of the decision of this court, the defendants would have simply moved the probate court to review the grant in accordance with Rule 63 of the Probate and Administration Rules. Their argument does not hold water. 22. They were in breach of the doctrine of lis pendens. Their conduct was a mockery to eective administration of justice and public policy. Their acts amounted to abuse of court process. See Carol Silcock v Kassim Sharrif Mohamed [2013] eKLR that was cited with approval in Caroline Cherono Kirui v Liner Cherono Towett [2022] eKLR and Agripina Nekesa Wafula v Vincent Wesonga Osimata [2021] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18274/eng@2023-06-19 4

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23. The creation of the subdivisions amounted to discovery of new and important matter and evidence which on the exercise of due diligence, was not within the plaintis knowledge or could not be produced by them at the time this court rendered its judgement. I nd the plaintis have met the ingredients of Order 45 Rule 1 of the Civil Procedure Rules. c) What orders should this court issue. 24. Considering the ndings of this decision and circumstances of this case, I entertain no doubt that an order for review is required for purposes of giving eect to the judgment of this court that was rendered on 16/02/2023. 25. The relief sought by the plaintis that the portion that was awarded to them by this court be hived o from North Sakwa/Maranda/4317 is untenable since it is on an entirely dierent parcel of land than that which was the subject for determination. The appropriate order would be a cancellation of the subdivisions and for the suit property to be reverted to its previous registration of North Sakwa/ Maranda/40. 26. By the provisions of Sections 3A of the Civil Procedure Act and Section 3 of the Environment and Land Court Act, this court shall exercise its inherent powers to ensure it renders a decision that is just and necessary to ensure the ends of justice or to prevent abuse of the process of the court. In the recent decision of Migori County Government & another v Migori County Transport Sacco (Civil Appeal 110 of 2017) [2021] KECA 7 (KLR) (23 September 2021) (Judgment), the Court of Appeal held thus: ‘The court was always possessed of residual inherent powers which allowed it to make any orders in the wider interest of justice. It was for the court to fashion out an appropriate remedy even in instances where the Constitution and the law were silent. A court could not just helplessly stare at a petitioner whose rights and fundamental freedoms were trampled upon or when it was ostensibly demonstrated that the Constitution was either contravened or so threatened. Unless a court rose to, and asserted its authority, chances were that it could fail the calling in article 3 of the Constitution. Even in instances where there were express provisions on specic reliefs, a court was not precluded from making any other orders under its inherent jurisdiction for the ends of justice to be met to the parties.’ 27. 28. Utmost, I nd the motion merited and because costs follow the event, I award costs to the plaintis. Consequently, I hereby make the following nal disposal orders: a. The District Land Surveyor-Bondo or any other designated ocer is hereby ordered to amend the Registry Index Map (RIM) of where the subdivisions known as North Sakwa/ Maranda/4317, 4318, 4319, 4320, 4321 and 4322 are located and revert it to the previous RIM and the Land Registrar- Bondo do cancel the subdivisions known as land parcels numbers North Sakwa/Maranda/4317, 4318, 4319, 4320, 4321 and 4322 so that the land reverts to the previous registration number being Land Parcel no. North Sakwa/Maranda/40. b. Upon compliance with order no. (a) above the sequence of events envisaged in orders no. (b) and (c) of the judgment rendered on 16/02/2023 shall be commenced to ensure full execution of the decree in the suit. c. The defendants shall bear the costs of the notice of motion and those of the District Land Surveyor-Bondo or any other designated ocer and that of the Land Registrar- Bondo comprised in orders no. (a) herein above. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18274/eng@2023-06-19 5

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DELIVERED AND DATED AT SIAYA THIS 19TH DAY OF JUNE 2023. HON. A. Y. KOROSS JUDGE 19/6/2023 Ruling delivered in the Presence of: Mr. Odongo for the plaintis Mr. Siganga for the defendants Court assistant: Ishmael Orwa https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18274/eng@2023-06-19 6

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