Yator v Uasin Gishu County & another

2. The application is predicated upon the 22 grounds stated on its face and on the Applicant’s supporting adavit sworn on 6th February 2024. The long and short of it is that she was not privy to nor was she aware of the consent order issued on 16th July 2019. She avers that if the alleged consent order is implemented, she will be denied a chance to be heard and she stands to lose her property. 3. The plainti led a Further adavit in which she accused the 2nd defendant’s counsel of ling documents in court without serving her. 4. The application is opposed by the 2nd Defendant through the Replying Adavit of S.K Lel, the County Attorney, sworn on 26th June, 2024. He gives a background of this matter as follows: The plainti was initially represented by the rm of Birech, Ruto & Company Advocates in March 2017. On 19th November 2018 she appointed the rm of Mukabane & Kagunza Advocates. When the matter came up for mention on 23rd May, 2019 in the presence of counsel for the plainti and Defendants, the court ordered the County Surveyor Uasin Gishu County together with the private surveyor appointed by the plainti to visit the suit land and conrm if a survey was done and le a report in court within 14 days. 5. The matter was xed for mention on 20th June, 2019 when Mr. Yego Advocate held brief for Mr. Kagunza, the Plainti’s counsel. The matter was subsequently mentioned on 16th July, 2019 in the presence of the defendant’s counsel and in the absence of the plainti’s counsel. On the said date the court ordered that the survey be done within 14 days and that the plainti to appoint a surveyor within 7 days. The matter was xed for mention on 25.9.2019 and the 2nd Defendant was directed to serve the plainti with the order. On 25.9.2019 the plainti’s advocate attended court and informed the court that the plainti’s private surveyor had passed on. The County Surveyor subsequently conducted the survey on 27.9.2019 and led his report in court on 30.9.2019. 6. The County Surveyor appeared in court on 5th December 2019 when he was cross-examined on his report by counsel for the plainti and the parties were directed to le their submissions. The Applicant was dissatised with the directions issued on 5th December, 2019 and she led an application seeking an order that the judge recuses herself. This was followed by an application dated 25.1.23 seeking to stop the implementation of the mutation approved by the County Surveyor on 6th July, 2021. Following the dismissal of her application the applicant led the instant application. 7. In response to the Applicant’s Further adavit, Ms Chesoo, learned counsel for the 2nd Respondent led a Supplementary Adavit sworn on 16.10.24 in which she refuted the accusations by the Applicant. 8. The court directed that the application be canvassed by way of written submissions but only the Applicant led her submissions while the 2nd Respondent opted to rely on their Replying adavit and Supplementary adavit. 9. Having considered the Notice of Motion, Supporting and Further Adavit as well as the Replying Adavit, Supplementary Adavit and the Plainti/ Applicant’s submissions, the following issues arise for determination_ a. Whether the consent order issued on 16.7.2019 should be set aside. b. Whether an injunction should be issued to restrain the Defendant from approving or transferring the title in respect of land parcel no. Eldoret Municipality Block25/3. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7581/eng@2024-11-13 2

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Analysis and Determination. 10. From the outset I must point out the order issued by the court on 16.7.2019 was made in the presence of the 1st and 2nd Defendants’ counsel and in the absence of the Plainti and her advocate. From the proceedings, I note that the court directed that the order be served upon the Plainti. 11. When the matter came up for mention on 25.9.2019 Miss Koech held brief for Mr. Kagunza and Mr. Odongo informed the court that the County Surveyor had visited the site on 6.9.2019 in the presence of the Plainti’s private surveyor. The presence of Miss Koech suggests that the plainti’s counsel was served with a mention notice and the order issued on 6.9.2019 and even though he did not attend court personally, he instructed Miss Koech advocate to hold his brief and represent the Plainti. The court then directed that the surveyors be summoned to attend court and explain their reports. It is instructive to note that on 5.12.2019 the plainti’s counsel and the 2nd defendant’s counsel cross-examined the County surveyor on his report and the court directed the parties to le their submissions. 12. Having participated in the proceedings ensuing from the orders issued on 16.7.2019, the Applicant can therefore not turn around and ask the court to set aside the said order. At any rate, the directions contained in the order of 16.7.2019 were not new as the court had issued similar orders on 23.5.2019 in the presence of counsel for the plainti. It could well be that the plainti’s former counsel may not have clearly explained to the plainti the import of the orders issued by the court. 13. Even though the court has a discretion to set aside its orders, such discretion must be exercised judiciously to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error but not to assist a person who had deliberately sough to obstruct or delay the course of justice. See the case of Shah v Mbogo (1967) E.A 116. 14. With regard to consent orders, the court cannot interfere with a consent order except in circumstances as would aord a good ground for varying or rescinding a contract. 15. If indeed the Applicant was dissatised with the orders issued on 16.7.2019, she would have applied to have those orders set aside at the earliest possible opportunity. Instead, the Applicant led an application 28.2.2020 seeking an order that the judge recuses herself and another application dated 25.1.2023 seeking an order to stop the implementation of the mutation form approved by the County Surveyor on 6.7.2021. It is only when these applications were dismissed that she chose to le the instant application. The 4 -year period of delay in bringing the application is inordinate and the same has not been explained. 16. The applicant has therefore failed to demonstrate that the court ought to exercise its discretion in her favour. 17. Regarding the order of injunction, I note that the Applicant led a similar application dated 25.1.23 in which she sought to stop the implementation of the mutation approved by the Uasin Gishu County Surveyor on 6th July 2021. The said application was dismissed and the court cannot revisit the same application as the matter is res judicata. The doctrine of res judicata is set in section 7 of the Civil Procedure Act which provides as follows: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit, or the suit in which such issue has been subsequently raised and has been heard and nally decided by the court”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7581/eng@2024-11-13 3

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18. The upshot is that the application lacks merit and it is hereby dismissed with no order as to costs. DATED SIGNED AND DELIVERED AT ELDORET THIS 13TH DAY OF NOVEMBER 2024. ……………… J.M ONYANGO JUDGE In the presence of; 1. Prisca Yator - Plainti 2. Miss Rotich for the 2nd Respondent Court Assistant: Kuto https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7581/eng@2024-11-13 4

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