Doune Farm Limited v Kirui & 13 others

RULING Brief Facts 1. The Plainti/Applicant led the instant application dated 12th September, 2023 seeking the following orders: 1. Spent. 2. That this Honourable court be pleased to review, and/or vary its orders of 8th May, 2023 and to allow the Applicant harvest the commercial trees (including but not limited to Eucalyptus) in the suit property. 3. That cost of this application be in the cause. 2. The Application was based on grounds set out and supported by the Adavit of Richard James Kay Muir a Director of the Plainti herein sworn on 12th September, 2023. 3. It was stated that the Plainti is the absolute proprietor of LR no 9045/9 Rongai Nakuru the suit property herein. That it had sought for a temporary as well as a permanent injunction restraining the Defendants from trespassing the suit property or in any way dealing with the Plainti’s land. 4. That vide a ruling dated 8th May, 2023 this court ordered that the status quo be maintained pending the hearing and determination of the suit. He further stated that the court restrained both parties from felling or harvesting the tress on the suit land. He added that it was imperative to bring to the court’s attention that the Plainti had planted exotic trees that have since matured and are due for harvesting. 5. It was further stated that the government had lifted the ban on logging which in eect gave then the greenlight to cut the trees for commercial purposes. The Applicant added that he is apprehensive that the commercial value of the exotic trees may expire during the pendency of the suit due to their life span. 6. The Applicant stated that as advised by his counsel the court can grant an order for review under Order 45 Rule 1 and guided by the holding in the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR. He added that as advised by his counsel, the instant application is premised on the grounds of discovery of new or important evidence in this case the lifting of the logging ban by the government of Kenya. 7. In conclusion, the Applicant urged the court to allow the instant application as prayed or else it will suer nancial loss. Response 8. The Defendants did not le any response despite service. Submissions 9. None of the parties led their submissions. Analysis and Determination 10. This court has considered the application and supporting adavit and is of the view that the main issue for determination is whether the Applicant is entitled to the orders sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21118/eng@2023-10-31 2

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11. Section 80 of the Civil Procedure Act provides that: Any person who considers himself aggrieved: - 12. a) By a decree or order in which an appeal allowed by this Act, but from which no appeal has 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 Rule 1 of the Civil Procedure Rules on the other hand further provides that: 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 from whom 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 sucient reason, desires to obtain a review of the decree or order, may apply for a review of the judgment to the court which passed the decree or made the order without unreasonable delay. 13. The Applicant herein seeks to have the orders issued by this court on 8th May, 2023 reviewed on the ground that there has been discovery of new and important evidence being the lifting of the logging ban by the government of Kenya. This court had earlier ordered that the status quo be maintained pending the hearing and determination of the suit. It also restrained both parties from felling or harvesting the tress on the suit land. 14. It is not in dispute that in July this year the government lifted the 6-year ban on logging of trees in the country. It is also not in dispute that the government’s lift on the ban on logging is a new evidence that arose after the court’s ruling. However, it is noteworthy that in a recent holding on 12th October, 2023, Angote J in Law Society of Kenya v Attorney General & 3 others; Katiba Institute & 6 others (Interested Parties) (Environment & Land Petition E001 of 2023) [2023] KEELC 20583 (KLR) (12 October 2023) (Interim Judgment) issued an interim judgement to the eect that the lifting of the ban on logging by the government of Kenya ought not to proceed due to lack of public participation. 15. This court fully associates itself with the holding by the said court and nds that the Applicant does not stand to lose anything since the said trees shall remain intact pending determination of the suit. Furthermore, it would be of no good for this court to review its orders allowing the Applicant to cut the trees for its nancial gain yet there is already an interim judgment by similar court of equal status touching on the said logging. In the upshot, I nd that the Applicant is therefore not deserving of the orders sought. 16. Consequently, the application dated 12th September, 2023 is hereby dismissed with no orders as to costs. It is so ordered. RULING DATED, SIGNED AND ISSUED AT NAKURU VIA ELECTRONIC MAIL ON THIS 31ST DAY OF OCTOBER 2023. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21118/eng@2023-10-31 3

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A.O. OMBWAYO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21118/eng@2023-10-31 4

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