Virji v Barng’etuny (Environment & Land Case 157 of 2016)  KEELC 14744 (KLR) (9 November 2022) (Ruling)
Neutral citation:  KEELC 14744 (KLR)
Republic of Kenya
Environment & Land Case 157 of 2016
SM Kibunja, J
November 9, 2022
Shivji Naran Virji
Ogla Jemeli Barng’etuny
1.This ruling relates to the above four (4) applications filed by the parties herein that the Court on 22nd March, 2022 directed they be dealt with together through written submissions in order to fast track the matter.
2.The first application is one dated 21st December 2021, and seeks for orders:a.THAT the respondent/defendant was not a party in execution proceedings as she was not served as provided by law.b.THAT Court Ruling dated 15th March, 2021 be set aside and the same to operate as stay order of any intended execution of Decree/Judgement of this Honorable Court dated 29th August, 2019 pending termination of Constitutional Petition No. 013 of 2021.c.THAT Costs of this case be provided for.The application is based on the various grounds, including that the Plaintiff conspired with the firm of Arusei and Company Advocates and others and proceeded with the case without the defendant’s consent; that the said firm of Arusei is not the defendant’s advocates on record as their services were terminated on 11th September, 2020; that the Plaintiff misled the Court and the ruling of 15th December 2021 was entered without hearing the defendant; that the correction of the judgement of 29th August 2016 as per Constitutional Petition No. 013 of 2021 will determine the truth; that it would be prudent that the court stays execution of the judgement dated 29th August, 2019 pending the outcome of the petition filed. The application is supported by the affidavit sworn by the defendant wherein she re-iterated the grounds in support of the application. She further deposed that she did not swear to the affidavit of 15th December, 2021 in respect of Civil Application Number 14 of 2021. She indicated that she discovered the existence of Civil Application Number 14 of 2021 by chance since her advocates had not informed her about it. She thus deposed that the ruling delivered on 15th December, 2021 be set aside and she be given a chance to be heard on merit for the reasons that the said firm of advocates acted to her detriment without her instructions.
3.In response to the application, the plaintiff filed a replying affidavit sworn by SHIVJI NARAN VIRJI on the 31st January 2022 deposing to among others that the orders sought in the application have been overtaken by events since the order issued on 15th March, 2021 has already been executed through the Deputy Registrar of this court by executing the transfer forms and releasing the title document; that the suit property has already been transferred to his name as evidenced through the attached copy of the title document.; that this Court should therefore not issue orders in vain as there is nothing to be stayed; that the application is misconceived as the orders sought to be stayed are in reference to a Constitutional Petition No. 013 of 2021, which is a distinct suit from this one, and this Court is functus officio having rendered its judgement which was upheld by the Court of Appeal; that there is evidence all over that the defendant was indeed represented by the firm of Arusei and Company Advocates who have never ceased to act for her in this matter and the her assertions that she was not aware of the issues regarding the case are baseless, and only aimed at just throwing a spanner in the works to stop the execution process; that the defendant has abused Court process to an extent of filing a Constitutional Petition to quash the decisions of this Court and that of the Court of Appeal; that since it is a fundamental legal principle that litigation must come to an end, the defendant’s application must therefore be dismissed as it lacks merit.
4.The second application is dated 11th February, 2022, and the orders sought are that Advocates William Arusei, Job Kiplimo Rugut and James Okao, as well as the Advocates of Mbaluka and Company Advocates be summoned by the Court in order for the defendant to cross examine them on the affidavits.
5.In response to the application the plaintiff filed grounds of opposition among others that the defendant is seeking to have this court examine and pronounce itself on the affidavit evidence that was adduced before the Court of Appeal in Civil Appeal Number 262 of 2019 as well as the Court of Appeal Civil Application (SUP) No. 14 of 2021; that since the above two matters are separate from this one, this Court cannot entertain the said application; that the application infringes the rights of the plaintiff under Article 40 of the Constitution to own property and is a delaying tactic; that the application is a tactic aimed at frustrating this Court as the defendant has not followed the due process of changing representation since a litigant cannot just verbally decide to fire and hire counsel without involving the Court in the procedural manner; that the defendant is a vexatious litigant and in contempt of court orders having refused to abide by the orders issued by the Court; that the application has not been made honestly and for a proper purpose; and that the defendant has not demonstrated before this Court that she is deserving of the orders sought.
6.The third application is the Chamber Summons dated 22nd February 2022 wherein the plaintiff sought for eviction orders against the defendant who has refused to grant him vacant possession of the suit property. The orders sought in the application are that;a.THAT this Honourable Court issues eviction orders against the Judgement Debtor/Respondent or her representatives or her agents from Land Parcel ELDORET MUNICIPALITY BLOCK 13/886.b.THAT this Honourable Court to order the Officer Commanding Station Eldoret Police Station to offer security and supervision to FEMFA AUCTIONEERS to enable them to carry out eviction from the decree holder’s/applicant’s land parcel ELDORET MUNICIPALITY BLOCK 13/886 as per this Honourable Court’s decree dated 29/08/2019, orders dated 15/03/2021 and Court of Appeal decree dated 29/01/2021 in Kisumu Appeal No. 262 of 2019.c.THAT costs of this application be provided for.The application is based on the grounds inter alia that pursuant to several Court decisions, the Land Registrar transferred the title in Land Reference No. ELDORET MUNICIPALITY BLOCK 13/886 to the plaintiff’s name; that the plaintiff has since issued notice to the defendant to vacate the land; and that the OCS Eldoret Police Station should supervise the eviction. The application is supported by an affidavit sworn by SHIVJI NARAN VIRJI on 22nd February, 2022 wherein he re-iterated the grounds in support of the application in its entirety. The defendant has not filed any response to this application despite the Court having issued directions to do so.
7.The final application is the one dated the 14th March, 2022 and seeks for orders that;a.THAT Honourable Justice S.M Kibunja to recuse himself from hearing any matter of ELC Cause No. 157 of 2016 in any other related matter or alternatively strike out the following legal technicities captured in the face of written submissions dated 21st February 2022.I.The narrative “overtaken by events.”II.Technicality which may sanitize Arusei & Company Advocates criminal acts of forging affidavits and representation without instructions.b.THAT Honourable Justice S.M Kibunja be pleased to interpret the Judgments referred to in Chamber Summons application dated 22nd February, 2022 in relation to certified Court proceedings, Plaint dated 13th June, 2016 and its affidavit in support or alternatively disqualify himself from hearing the same.c.THAT the hearing of application dated 21st December 2021, its subsequent interlocutory application dated 11th February 2022 and chamber summons application dated 22nd February, 2022 be stayed pending the directions of disposing legal technicalities as claimed in this suit.The application is premised on the grounds that Hon. Justice Kibunja delivered a Ruling dated 15th December, 2021 that was obtained fraudulently by the plaintiff, with the help of Arusei & Company Advocates who purported to act as the defendant’s advocates. It was averred that the Court entertained the said firm of Advocates who acted for the defendant without proper instructions, and that the Court’s pronouncement that no urgency had been shown in the application dated 21st December, 2021 was questionable. Further it was averred that this Court entertained Arusei and Company Advocates during the hearing of the plaintiff’s application dated 22nd October, 2021 without granting the defendant a chance to prepare her defense. The defendant further averred that the eviction ought not to proceed since there was no proper representation, and that the suit property was a matrimonial home and thus any eviction should be halted. The application was supported by a supporting affidavit sworn by the defendant on the 14th March, 2022 wherein she re-iterated the grounds in support of the application. She further deposed that the eviction ought not to proceed until such time when her application dated 21st December, 2021 is heard and determined. The Defendant further made a raft of allegations on the nature in which the proceedings were conducted by this Court, including orders requiring parties to take dates in the registry in the usual way, as well as directions on filing of submissions. In summary the issues raised by the defendant touch on the proceedings, orders issued by Court and generally how the matter proceeded. Further the issue of her representation by the firm of Arusei and Company Advocates was a major component of the application as the defendant insists that the said firm of Advocates did not have instructions to represent her in the matter.
8.The plaintiff responded to the said application vide grounds of opposition dated 12th April, 2022, among others that the said application is without merit and amounts abuse of Court process; that the same is vexatious, scandalous and frivolous and is fit for dismissal.
9.The common issues for determinations by the court in all applications are as follows;a.Whether the applicant in each of the application has discharged their legal duty and satisfied the threshold for the orders sought therein to be issued.b.Who pays the costs in each application.
10.The parties filed written submissions which this Court has perused and shall consider them in the determination of the four applications.
11.The court has carefully considered the grounds on each of the applications, grounds of opposition, affidavit evidence, submissions and come to the following findings;a.On the application dated 21st December, 2021, that seeks the setting aside and stay of the execution of the ruling dated 15th March 2021, pending the hearing and determination of the Constitutional Petition No. 013 of 2021, no compelling reasons have been presented to the court upon which such an order can be based. Secondly, as to whether the defendant was represented by the firm of Arusei and Company Advocates, there are several documents on record to demonstrate that indeed she had engaged the firm of Arusei and Company Advocates to act for her in the matter. The consent order duly signed by Ms Mbaluka & Company Advocates as the outgoing counsel and Arusei & Company Advocates as the incoming counsel dated the 9th February 2021, is one such document. By the time the ruling the defendant seeks to be stayed was delivered, the defendant had not indicated to the Court her intention to act in person, and was under the representation of the firm of Arusei and Company Advocates. It therefore follows that the defendant was well aware of the proceedings in Court and cannot be allowed to belatedly come before this Court late in the day and purport not to have known anything regarding the progress of the suit. In view of the above, I find that the application lacks merit and is hereby dismissed in its entirety.b.The second application for determination is that dated 11th February, 2022 which seeks orders that the defendant’s advocates be summoned and be cross examined on the proceedings before Court and affidavits that allegedly happened without her instructions. The plaintiff’s case is that the defendant wants this Court to pronounce itself on the affidavit evidence that was adduced before the Court of Appeal in Civil Appeal No. 262 of 2019 and No. 14 of 2021 and that since those matters are separate and distinct from the instant matter, this Court cannot entertain the said application, which in their view was a manifestation that the defendant is hell bent on delaying this matter. The law provides the procedure to be adhered to where a litigant wish to change legal representation. The Civil Procedure Rules provides for clear ways of doing so, and thereby affording all the litigants/advocates an orderly atmosphere and sufficient notice for effective service, as opposed to the alternative where a party/counsel just wait until proceedings take place and then seek to invalidate them later in the day, without good reason. In view of this, I find that the application has not been made in good faith and agree with the plaintiff’s contention that the application is only intended to delay the resolution of this matter.c.The third application is the Chamber Summons dated the 22nd February 2022 that sought for eviction orders against the defendant. It was averred that there are very clear Court orders that have been issued requiring the defendant to vacate the suit property, which orders the she has failed to abide by. In order to ensure compliance with the Court orders it is therefore the plaintiff’s case that it is paramount that this Court issues eviction orders against the defendant so that the integrity of this Court is safeguarded. Title to the suit property has been issued to the Plaintiff, and therefore the defendant is illegally in occupation of the suit property. It is not contested that there have been several court matters touching on the suit property and several Court orders have been issued requiring the defendant to yield vacant possession of the property to the plaintiff. The said orders have not been obeyed by the defendant despite various follow ups which even led the Deputy Registrar to be empowered to sign transfer forms in respect of the property after the defendant failed to comply with the Court orders.d.A certificate of title to property is conclusive evidence of ownership as was held by this Court in Magdalene Wambui Muhia Vs. Joseph Mwangi Wanjau & 2 Others, HCCC 2424 of 1995. In the case of Margaret Karwira Mwongera -vs- Francis Kofo (2019) eKLR the court allowed eviction in the matter where the applicant was the registered proprietor and held title to the land. The registration of a person as proprietor and the issuance of the certificate of title thereof, to such a person as a proprietor of a property is conclusive proof that such person is the owner of the property. Section 26 (1) of the Land Registration Act, 2012 provides as follows;The upshot of the foregoing is that I find and hold that the plaintiff’s application is merited, and is hereby allowed as prayed in prayers (a) and (b) with costs.e.The final application seeks orders that I recuse myself from hearing this matter because of various allegations made by the defendant that have been detailed above. The principles governing recusal are fairly well settled. In Kalpana H. Rawal Versus Judicial Service Commission and 2 others (2016) eKLR, the Court of Appeal held;In PHILIP K. TUNOI & ANOTHER VERSUS JUDICIAL SERVICE COMMISSION & ANOTHER (2016), the Court of Appeal held;In JAN BONDE NIELSON V HERMAN PHILIPUS STEYN & 2 OTHERS HC COMM No. 332 of 2010  eKLR the court observed that:In Philip K. Tunoi & another v Judicial Service Commission & Another CA Civil Application NAI No. 6 of 2016  eKLR the Court of Appeal adopted the test for recusal propounded by the House of Lords in Porter v Magill  1 All ER 465, where it stated that;f.The Judicial Service (Code of Conduct and Ethics) Regulations 2020 dated 26th May 2020 provide a basis under which a judicial officer may recuse himself. Under Regulation 21 Part II of the said Code of Conduct, a Judge can recuse himself or herself in any of the proceedings in which his or her impartiality might reasonably be questioned where the Judge;(a)Is a party to the proceedings;(b)Was, or is a material witness in the matter in controversy;(c)Has personal knowledge of disputed evidentiary facts concerning the proceedings;(d)Has actual bias or prejudice concerning a party;(e)Has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;(f)Had previously acted as a counsel for a party in the same matter;(g)Is precluded from hearing the matter on account of any other sufficient reason; or(h)Or a member of the Judge’s family has economic or other interest in the outcome of the matter in question.Regulation 9 of the Judiciary Code of Conduct emphasizes the importance of impartiality of a Judge. Regulation 9(1) provides:Considering the facts of this case, it is clear that the allegations made by the defendant seeking that I recuse myself from this matter are not anything that fall within the parameters that have been enumerated in the regulations and the superior Courts decisions as cited above. However, as fate would have it, the judge the defendant wanted to recuse himself has since 1st October 2022 left the station on transfer to another station, and hopefully this translate to some relief for the defendant.g.The other prayers in the application for the striking out of alleged technicalities in the submissions dated the 21st February 2022, interpreting chamber summons dated the 22nd February 2022, plaint dated the 13th June 2016, and staying of the applications dated the 21st December 2021, 11th February 2022 and 22nd February 2022 are also found to be without merit. In any case, and in view of the above, this Court finds the application dated the 14th March 2022 is without merit and is hereby dismissed with costs.
12.From the foregoing the court finds and orders as follows;a.That the defendant’s notices of motion dated the 21st December 2021, 11th February 2022 and 14th March 2022 are without merit and are dismissed with costs.b.The plaintiff’s application dated the 22nd February 2022 has merit and is hereby allowed with costs in terms of prayers (a) and (b).It is so ordered.S. M. Kibunja, J.DATED AND VIRTUALLY DELIVERED THIS 9th DAY OF NOVEMBER 2022.IN THE PRESENCE OF;PLAINTIFF ………………………………………………………..……………………DEFENDANT …………………………………………………………...……………..COUNSEL ……………………………………………………………...………………………………………………………………………………...…………………………WILSON .. COURT ASSISTANT.S. M. Kibunja, J.ELC MOMBASA.ELC NO. 157 OF 2016 RULING Page 4 of 4