I am beginning to wonder whether John Wekesa Khaoya and Teresina Namaemba (the plaintiffs herein) are really keen in prosecuting this suit or they derive immense pleasure by simply trooping to this Court Ad Nauseam either to admire the smart Judicial Officers and other Staff or just to sympathize and laugh at the container which we imported from Kakamega Court to use as a registry. Either way, I must caution them that this file is now taking up valuable space in our registry. Perhaps we should now consider charging them storage fees!!Sample this: The plaintiffs first moved to this Court on 11th October 2010 vide their home made plaint seeking various orders against Paul Juma Wanyama and Jamin Wasike Kitui (the 1st and 2nd defendants respectively) with regard to the land parcel No East Bukusu/south Nalondo/1945 which has since been sub – divided to create land parcels No East Bukusu/south Nalondo/2725 – 2728. That plaint was later amended on 20th June 2011 to add Joseph Simiyu Kitui and James Robert Etyang as the 3rd and 4th defendants respectively. Thereafter, on 21st January 2015, one Henry Nasio and nine (9) others were enjoined in this suit as “Trespassers.” On 28th June 2018 the plaint was further amended and Henry Nasio, John Masika Wekesa, Maonjaro Kundu Titila, Mzee Kundu Kimimalilo, Chemiat Wafula, Emmanuel Wamalwa, Benson Wamalwa Juma, Solomon Wamalwa Kitila, Wamalwa Wanyonyi And Vincus Joshua were impleaded as the 5th to 14th defendants respectively. Then followed a plethora of applications.Meanwhile, by an application dated 10th November 2010, the plaintiffs had sought and obtained an order of temporary injunction to restrain the defendants by themselves, their servants and/or agents from tilling, dealing, transferring or working on the land parcels No East Bukusu/south Nalondo/2725 and 2727 pending the hearing and determination of the suit. That application was allowed by Omollo J on 2nd October 2013 who went on to direct that: -However, the suit did not proceed to trial because the plaintiffs had not filed and served several documents. Applications continued being filed in the matter. When the matter came up before Mukunya J on 20th July 2015, he advised the parties:-
The Judge’s advice was not headed. On 21st February 2018, the Deputy Registrar cautioned the plaintiffs that unless the orders issued by the Judge on 20th July 2015 are complied with within 30 days, the file would be placed before the judge for dismissal. However, notwithstanding several mentions before the Deputy Registrar, the suit survived the guillotine of dismissal.
The matter then came up before me on 20th June 2018, 23rd July 2018 and 26th September 2018 when the Court was informed that the plaintiffs wanted to amend their plaint and also that there was a possibility of a settlement between the 2nd plaintiff and the 1st to 4th defendants. However, nothing came out of those proposals. Instead, Counsel kept coming in and getting out of the case which continued to be adjourned no doubt in the spirit of Article 50(1) of the Constitution.
By a Notice of Motion dated 5th October 2018, the plaintiffs sought the main prayer that this Court summons the defendants to show cause why they should not be fined Kshs. 200,000/= or jailed for six (6) months for being in contempt of Court orders of injunction issued on 7th October 2013 (the order by Omollo J was actually dated 2nd October 2013). That application was dismissed by me vide a ruling dated 30th May 2019. In that ruling, I also made the following order: -When the case next came up for hearing, the plaintiff was not present and had also not served the defendants in good time and Counsel for the 1st to 4th defendants sought an adjournment. The case was then listed for hearing on 9th March 2020 when the 1st plaintiff withdrew the claim against the 5th to 14th defendants and went on to apply for time to substitute the 1st defendant who had passed away on 7th March 2020. That appears not to have been done to – date.
I now have before me for determination two (2) applications both filed by the 1st plaintiff. The first application is dated 19th May 2021 and the second application is dated 9th February 2022.
The first application is a complete replica of the previous application dated 5th October 2018 and which I dismissed on 30th May 2019. It also seeks the orders that the 2nd to 5th defendants be committed to civil jail for six (6) months and be fined Kshs. 200,000/= for being in contempt of the orders of this Court issued on 7th October 2013.
The second application seeks a declaration that the suit against the 1st defendant Paul Juma Wanyama be marked as having abated following his demise on 27th February 2010.
On 17th February 2022, I issued directions that the two applications be canvassed simultaneously by way of written submissions. Mr Kundu who is on record for the 1st to 4th defendants was allowed time to put in a response to both applications. However, he did not do so even after being granted an extension. Eventually, he informed the Court that he had lost contact with his clients and needed time to file an application to cease acting for the 1st to 4th defendants. That has also not been done to – date. The two applications therefore remain un – contested. That notwithstanding, I will consider the merits or otherwise of the two application.
The Notice of Motion dated 19th May 2021 is really for striking out for reasons that it is res – judicata. As stated above, the orders sought in this application are the same orders that were sought in the application dated 5th October 2018 which I dismissed on 30th May 2019. The doctrine of res – judicata is set out in mandatory terms in Section 7 of the Civil Procedure Act as follows: -Res – judicata applies both to suits and applications. In Uhuru Highway Development Ltd .v. Central Bank Of Kenya & Kamlesh Pattni C.a Civil Appeal No 36 of 1996 [1996 eKLR], the Court of Appeal after citing the Privy Council in the case of Ram Kirpal .v. Rup Kuari (i.l.r) Vol Vi 1883 Allahabad went on to state thus: -See also Mburu Kinyua v Gachini Tuti 1978 KLR where the majority of the Bench held that a second application to set aside a Judgment entered ex – parte would be res – judicata when the fact upon which it was based were known to the Applicant.
The application to punish the defendants for contempt was previously canvassed by the plaintiffs and dismissed on 30th May 2019. The current application dated 19th May 2021 is therefore res – judicata. It is accordingly struck out.
For the benefit of the plaintiffs, I can only re – visit my ruling delivered on 30th May 2019 wherein I cited the provisions of Order 40 Rule 6 of the Civil Procedure Rules which says: -rent application seeks orders that the 2nd to 5th defendants be cited for contempt of the orders of OMOLLO J issued on 2nd October 2013. The 3rd, 4th and 5th defendants were not parties to the suit by the time those orders were being issued. They were only enjoined in these proceedings following an amended plaint filed herein on 28th June 2018. They cannot therefore be punished for orders issued long before they were made parties in this suit.
The import of Order 40 Rule 6 of the Civil Procedure was considered by the Court of Appeal in Barclays Bank Of Kenya v Henry Ndungu Kinuthia 2018 eKLR where it stated that unless the order for temporary injunction is extended by the Court, it lapses after twelve (12) months. Further, in Erick Kimingichi Wapang’ana & Another v Equity Bank Limited & Another 2015 eKLR, the same Court said: -
It follows therefore that even if the Notice of Motion was not res – judicata, it would still collapse.
The Notice of Motion dated 19th May 2021 is hereby struck out.
The second application dated 9th February 2022 seeks the order that the suit against the 1st defendant Paul Juma Wanyama be declared as having abated. The Court would have expected that the Death Certificate of the 1st defendant be annexed to the application as proof that indeed he died on 27th February 2010 as deponed in the supporting affidavit of the 1st plaintiff. Instead, what has been annexed to the said affidavit is the funeral programme showing that indeed the 1st defendant passed away on 27th February 2020. Only the first page of the programme is annexed so it is not clear when he was buried. While the production of a Death Certificate is the best evidence to prove the fact that a party is deceased, it is by no means the only evidence to prove that fact. In my view, the Court can admit other congent evidence to prove that fact. In doing so, I take cognizance of the fact that in this country, many people are illiterate and may not even appreciate the need to obtain such a document. To insist on the production of a Death Certificate may result in an injustice being meted out to litigants who are otherwise well meaning and deserving of the orders sought. In the circumstances of this case, I am persuaded that the funeral programme is sufficient proof of the fact that the deceased passed away on 27th February 2020. In any event, when the parties appeared before me on 9th March 2020, Mr Musumba then holding brief for Ms Gatimbu for the 1st to 4th defendants confirmed that he was aware about the demise of the 1st defendant. And finally, the averments contained in the supporting affidavit of the 1st plaintiff have not been rebutted as the application is not opposed. I therefore make the finding that the 1st defendant died on 27th February 2020.
Order 24 Rule 4 of the Civil Procedure Rules provides as follows: -It is clear therefore that following the death of the 1st defendant on 27th February 2020, a fact that is not controverted, the suit against him has abated by law. There is no evidence of any intention of substituting him. The Notice of Motion dated 9th February 2021 is therefore meritorious. I allow it.
Before I make the final disposal orders in this matter, I must once again impress upon the plaintiff on the importance of having this suit expedited. Were it not for their indolent in prosecuting their claim, they would not have ended up in the unfortunate muddle in which they now find themselves most notably, the fact that the suit against the 1st defendant has now abated. And having withdrawn the suit against the 5th to 14th defendants, they now only have the 2nd, 3rd and 4th defendants against whom to prosecute their claim.
The plaintiffs also appear to be more preoccupied in prosecuting peripheral applications geared towards punishing the defendants for contempt. Even if they succeeded in having the defendants cited and punished for contempt of any orders of this Court, that will not determine the substratum of their suit which is a declaration that the defendants hold the land in dispute in trust for them. That is what they should prioritize rather than the ego trips whose main intention is only to see the defendants incarcerated in civil jail. And at this rate, they may soon run out of defendants to send to jail. Hopefully, this advice which is now being given for the umpteenth time will be taken with the seriousness which it deserves and I intend to make appropriate orders shortly to ensure that this suit is heard and determined without any further delay.
Finally, I must deprecate the conduct of Mr Kundu Counsel for the 1st to 4th defendants in this matter. When he last appeared before the Deputy Registrar of this Court on 26th April 2022, he sought time to file an application to cease acting for the 1st to 4th defendants on the ground that he had lost their contact. He was granted upto 18th May 2022 to do so. However, he neither filed that application nor came back to Court to explain what difficulties he was experiencing in doing so and if he needed more time. Counsel owes a duty not only to his client but also to his opponent and the Court. As an Officer of this Court, Mr Kundu has an overriding duty to promote the interests of justice and observe the rules of professionalism. Having undertaken to file an application to cease acting for the 1st to 4th defendants, I find it dishonourable that Counsel not only failed to do so but also gave the Court a wide berth. Yet, under the overriding objectives of this Court, an Advocate has a responsibility to participate in the process of the Court by complying with Court orders and directions. In the circumstances of this case, Mr Kundu has failed that test. For now, I shall do no more than to express my utmost displeasure and hope that conduct will not recur.
Ultimately and having considered the two applications, this Court makes the following disposal orders: -1.The Notice of Motion dated 19th May 2021 is hereby dismissed.2.The Notice of Motion dated 9th February 2022 is hereby allowed.3.The plaintiffs shall take the earliest hearing date in the registry and serve MR Kundu.4.Each party to meet their own costs.
BOAZ N. OLAO.J U D G E28TH JULY 2022.