REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC APPEAL NO. 15 OF 2018

JAMES THENDU GITAU...............................................1^ST APPELLANT/APPLICANT

RAPHAEL KINUTHIA KAMAU..................................2^ND APPELLANT/APPLICANT

VERSUS

JOHN NGINGA MAGECHA.....................................................................RESPONDENT

RULING

The matter for determination is the Notice of Motion Application dated 15^th June 2020 by the Appellants/ Applicants seeking for orders that;

1. That the Judgment  of the Court dated, signed and delivered on 4^th June 2020  and all consequential orders  thereof be  and is/are hereby  recalled, reviewed, reversed, vacated and set aside (quod judicium reversetur).

2. That the Lower file No. ELC 8/2018 Gatundu be returned.

3. That Costs of the Application be borne by the Respondent.

The Application is premised on the grounds that the Appellants/ Applicants acquired title over land parcel No. Ngenda/Wamwangi/904 and 903, pursuant to Petitions for Grant vide Succession Causes No. 43 of 2012 and 44 of 2012. That the  Respondent sought to revoke   the two grants  vide summons for revocation  filed as Succession  Cause No. 852 of 201  Muranga, which was later transferred to Kiambu  High  Court  and registered as Succession cause  No. 150 of 2017. That the Kiambu  Succession Cause was later transferred to Gatundu and registered as Succession Cause No. 253 of 2019. That in the year 2017, the Respondent filed summons for revocation of grant in Succession Cause No. 44 of 2018.  That in the year 2018, the Respondent trespassed  in the said land  and started excavating stones. It was contended that the Appellants/ Applicants filed ELC No. 8 of 2018 and sought temporary injunctive orders which were not granted. That upon dismissal, the Appellants/ Applicants filed Memorandum of Appeal on 13^th June 2018.  While the Appeal was pending, the Court dismissed the two Summons for revocation of grant and all the issue pending in ELC 8 of 2018  and Appeal  No. 15 of 2018 were determined  and the Court concluded that the Respondent is not a beneficiary of the two Estates.

That upon the delivery of the lower Court ruling, the Appeal herein became overtaken by events  and the  Applicants withdrew  ELC No. 8 of 2018 at  Gatundu and Appeal  No. 15 of 2018, on 4^th May 2020 and on 6^th May 2020 respectively. That the basis of the withdrawal of ELC 8 of  2018 at Gatundu  and Appeal  No. 15 of 2018,  was to avoid conflicting rulings  and or Judgments  since the issues had been  heard  and determined. That the Appellants/ Applicants were surprised to learn that a Judgment had been delivered on 4^th June 2020, yet there was no pending Appeal. Further that on 5^th June 2020, the Respondent, his son hired goons and   forcefully entered into the parcel of land in a bid to unlawfully evict the Appellant’s/ Applicants servants and inflicted near fatal injuries to the said servants. That there is an apparent error on the face of the record since the Judgment was delivered after withdrawal of the Appeal. Further there is sufficient reason to  recall, review, set aside and  vacate the Judgment delivered on 4^th June 2020,  as the orders issued were  to last pending  determination of  ELC No. 8 of 2018,  which was withdrawn prior  to delivery of the impugned Judgment.

The Application is supported by the Affidavit  of James Thendu Gitau  who reiterated the contents of the grounds  in support of the Application  and annexed bundle of documents  attesting to the same.

The Application is opposed and the Respondent John Nginga  Magecha swore a Replying Affidavit  dated 29^th June 2020, and acknowledged that  he filed Summons for Revocation  of Grant in Gatundu Chief Magistrates Court  which Summons  were dismissed on 11^th March 2020. He averred that he has preferred an Appeal of the said Ruling which is pending before the High Court in Kiambu  Vide HCCA Appeal No. 52 of 2020 . It was his contention that  it  is untrue  for the Appellants to claim that the dismissed revocation  proceedings in Gatundu  conflict with the Judgment of this Court  as the said proceedings were determined  through the requisite  legal regime and separate  from the injunctive proceedings instituted by the Appellants  in Gatundu ELC No. 8 of 2018  which were the basis for the  appeal that was heard before this Court .

He further averred that the Appellant’s/ Applicant’s servants attacked his son and inflicted serious injuries upon him which matter was reported to the  Gatundu Police station . That he has been advised by his Advocate which advise he believes to be true that the Application is bad in   law,  unmeritious and an abuse of the Court process. That the Notice of withdrawal  of the lower Court  suit and Appeal  was only served  upon the office  of his Advocate  on record on 8^th June 2020, after the delivery of the Judgment. That the same would demonstrate that the Appellant’s/ Applicant’s actions of filing the Appeal before the Court and the intent to forestall the outcome was intent on  abusing the Judicial process. That the Court orders are not in vain  and issued only upon determination of the merit  and the interest of Justice should reign supreme. He urged the Court to dismiss the Application.

The  Appellant’s applicant filed a further affidavit  sworn by  James Thendu Gitau  sworn on  9^th July 2020 who averred that his Advocates have never been served with the Memorandum of Appeal. That all the numerous suits and summons were based on one issue of ownership of the suit properties and the summons of revocation of grant concluded the issue of ownership  of the suit properties . He contended that it was not prudent to have multiplicity of suits over the same subject matter.

The Application was canvassed by way of written submissions which the Court has carefully read and considered and finds that the issue for determination is whether the Appellant/Applicants are entitled to the orders sought.

The Appellants/ Applicants have sought for the review of the Judgment of this Court based on the fact that the Judgment was delivered after the Appeal had been withdrawn and the lower Court suit had also been withdrawn. The Court must then first determine whether the Appeal had been properly withdrawn. The Appellant/ Applicant have stated that the lower Court suit had been withdrawn and the Appeal had also been withdrawn by the time Judgment of this Court was being delivered. The provisions of law  that relates to the withdrawal of suits is  order 25 Rule 1 of The Civil Procedure Rules which states:-

“At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action”.

In the case of  Beijing Industrial Designing & Research Institute vs. Lagoon Development Ltd (2015) eKLR. The Court held that;

“The above provision presents three clear scenarios regarding discontinuance of suits or withdrawal of claims.  The first scenario arises where the suit has not been set down for hearing. In such an instance, the Plaintiff is at liberty, any time, to discontinue the suit or to withdraw the claim or any part thereof.  All that is required of the Plaintiff is to give notice in writing to that effect and serve it upon all the parties. In that scenario, the Plaintiff has an absolute right to withdraw his suit, which we agree cannot be curtailed. The second scenario arises where the suit has been set down for hearing. In such a case the suit may be discontinued or the claim or any part thereof withdrawn by all the parties signing and filling a written consent of all the other parties.  The last scenario arises where the suit has been set down for hearing but all the parties have not reached any consent on discontinuance of the suit or withdrawal of the claim or any part thereof.   In such eventuality, the Plaintiff must obtain leave of Court to discontinue the suit or withdraw the claim or any part thereof, which is granted upon such terms as are just. In this scenario too, the Plaintiff’s right to discontinue his suit is circumscribed by the requirement that he must obtain the leave of the Court.  That such leave is granted on terms suggests that it is not a mere formality”. (my emphasis)

With above decision in mind, it is the Court’s considered view that the instant Appeal had not been properly withdrawn. This is so because the Appeal had already been set down for hearing and was pending Judgment by the time the Notice of Withdrawal was filed on 6^th May 2020, and therefore the Appellant’s / Applicants required the leave of this Court before they could withdraw the said Appeal. 

Therefore, the Court finds and holds that the Appeal was not properly withdrawn since leave of Court had not been sought.  Therefore, the Appeal was not discontinued.

However, with regards to the lower Court suit, the Notice of Withdrawal was filed on 4^th May 2020. It is not in doubt that the said suit was still in its preliminary stage as only an interim Application had been heard. The same had not been set down for hearing. It therefore follows that upon the filing of the Notice of Withdrawal on 4^th May 2020, the subordinate Court’s suit ELC 8 of 2018, was automatically withdrawn. See the case of  Kofinaf Company Limited & another …Vs… Nahashon Ngige Nyagah & 20 others [2017] eKLR where the Court held that;

“From the two decisions of the Court of Appeal (which needless to say are binding on this Court) the law can be stated to be that as a general proposition the right of a Plaintiff to Discontinue a Suit of or Withdraw a Claim under the provisions of order 25 Rule 1 (that is where the suit has not been set down for hearing) is an absolute and untrammeled right. Also, again as a general proposition, it takes effect upon the filing of the Notice. No leave of Court is required nor a Court endorsement necessary to give effect to this withdrawal.’’

Though the Court has held that by the time Judgment was being delivered, the instant Appeal had not been withdrawn, the Court further notes that the Judgment delivered granted orders pending the hearing and determination of the Case No. 8 of 2018, which had already been withdrawn. The Court has power to review its own decision. However, such power must be exercised within the framework of Section 80 of the Civil Procedure Act and Order 45 Rule 1. Section 80 of the Civil Procedure Act provides as follows:-

“ 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 judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows:-

 (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, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgment to the court which passed the decree or made the order without unreasonable delay.”

The Appellant’s / Applicants seek to review the Judgment on the fact that there was an error apparent on the face of the record. In Nyamogo & Nyamogo …Vs… Kogo   {2001} EA 170. discussing what constitutes an error on the face of the record, the court rendered itself as follows:-

“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.”

The Court delivered Judgment and gave orders pending the hearing and determination of a non existent suit as the lower Court suit had already been discontinued. It is the Court’s considered view that the same amounts to an error apparent on the face of record as the Court while delivering Judgment was not aware of the said withdrawal.

Therefore, this Court finds and holds that it will only be proper that it reviews and set aside the said Judgment. As the orders granted would not have any anchor to hold unto.  Consequently, this Court finds and holds that the Appellants/ Applicants are entitled to the orders sought.

Having now carefully considered the instant Notice of Motion Application dated 15^th June, 2020 and the annextures thereto and the Written Submissions, this Court finds it merited and the same is allowed entirely with no orders to costs.

It is so ordered 

Dated, signed and Delivered at Thika this 17^th day of December 2020

L. GACHERU

JUDGE

17/12/2020

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to the COVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15^th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Muthomi for the 1^st Appellant/Applicants

No appearance for the 2^nd Appellant/Applicant

L. GACHERU

JUDGE

17/12/2020