Mjomba & Family v Mwashigadi & another (Environment & Land Case 176 of 2017)  KEELC 15183 (KLR) (6 December 2022) (Ruling)
Neutral citation:  KEELC 15183 (KLR)
Republic of Kenya
Environment & Land Case 176 of 2017
NA Matheka, J
December 6, 2022
Hilary Mjomba & Family
1st Judgment debtor
2nd Judgment debtor
1.The application is dated May 19, 2022 and is brought under sections 1A,1B and 3A Civil Procedure Act order 22 rule 28 and order 51 rule 1 of the Civil Procedure Rules seeking the following orders;1.That this application be certified urgent.2.That the judgment debtors/ respondents be committed to civil jail for a period of six (6) months for being in contempt of the decree of this court issued on March 28, 2022.3.That the judgment debtors/ respondents be summoned to appear before court to show cause why they cannot purge the contempt.4.That upon failure or refusal by the judgment debtors/ respondents, there be issued warrants of arrest against them to be executed by the Officer in Charge of the Mackinnon Road Police Station for their production in court and subsequent punishment for contempt of court.5.That in the alternative, this honourable court do issue an order for demolition and/or removal of all structures erected and being on the suit property known as Adjudication section Taru-Voi P/No 78 by the judgment debtors within fourteen (14) days of the date of this order and that in default thereof the decree-holders/ applicants to undertake such demolition and removal pursuant to warrants issued by this Honourable Court at the judgment debtors' cost.6.That the Officer in Charge of the Mackinnon Road Police Station to supervise the order for demolition and removal for purposes of upholding law and order.7.That the costs of this application be awarded to the decree holders in any event.
2.It is based on the supporting affidavit of Hilary Mjomba the grounds that judgment was awarded in favour of the decree holders herein on March 23, 2022 and decree issued on March 28, 2022. That the judgment debtors advocates duly attended the reading of the judgment and are aware of its contents and import. That the decree herein was extracted and duly served upon the judgment creditors requiring their compliance. That the judgment debtors have had opportunity of obeying the decree but have willfully failed to do so.
3.The second application is dated August 22, 2022 and is brought under sections 1A, 1B, 3, 3A and 63 (e) and 80 of the Civil Procedure Act and order 45 rules 1 and 2 & order 51 rule 1 of the Civil Procedure Rules, 2010 seeking the following orders;1.That, this application be certified as extremely urgent and service hereof be dispensed with in the first' instance.2.That this honourable court be pleased to stay the operation of the judgement dated March 23, 2022 pending the hearing and determination of the application interpartes.3.That, this honourable court be pleased to review and/or set aside the judgement entered herein and all consequential orders of the judgement read on the March 23, 2022.4.That, the suit be reinstated for hearing5.That this honourable court be pleased to grant order 2 pending hearing and determination of the application herein.6.That costs of this application be in the cause.
4.It is based on the grounds that the applicants have discovered new evidence which was not within their knowledge hence could not be produced at the hearing and when the decree was passed. That the plaintiff witness PW-5 Amos Kiplagat Rutto purported adjudication officer produced a document stating that it was sketch plan in regard to Plot No Adjudication section Taru-Voi P/ No 78. That the court erred in fact and law by failing to consider the authenticity of the sketch plan. That No Plot exists in any land registry in regard to plot number Adjudication section Taru-Voi P/No 78. That therefore there is no suit property existing as Plot No Adjudication section Taru-Voi P/ No 78. That the court erred in law and fact by admitting the evidence of PW-5 Amos Kiplagat Rutto who was induced to give false and malicious evidence and also did not produce job identification card. That the foregoing makes sufficient grounds and/or reasons for granting of the orders sought.
5.This court has considered the applications and submissions therein. On the second application dated August 22, 2022, section 80 of the Civil Procedure Act cap 21 provides as follows: -
6.In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya  eKLR High Court of Kenya Nairobi Judicial Review Division Misc application No 317 of 2018 the judge set out the following principles;
7.The Court in the case of Kibos Sugar & Allied Industries Limited & Another v Benson Ambuti Adega & 6 Others, Civil appeal (application) No 153 of 2019 (unreported) quoted with approval the English case of The National Guild of Removers & Storers Limited v Bee Moved Limited & Others  EWCA Civ 1302 that;
8.Looking at the facts of the instant case, the plaintiff witness PW-5 Amos Kiplagat Rutto an adjudication officer produced a document stating that it was sketch plan in regard to Plot No Adjudication section Taru-Voi P/ NO 78 and confirmed it belonged to the plaintiff. The defendants maintain that no Plot exists in any land registry in regard to plot number Adjudication section Taru-V0i PINo 78. That therefore there is no suit property existing as Plot No Adjudication section Taru-Voi P/ No 78. That the court erred in law and fact by admitting the evidence of PW-5 Amos Kiplagat Rutto who was induced to give false and malicious evidence. That no adjudication has ever been done according to the Kwale sub county office in Kinango. In delivering judgement in this matter the court confined its determination with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
9.The discovery of new or important matter or evidence by the defendant is not sufficient ground for review. The defendant has not shown that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier. I find that the only recourse for the applicant would be to appeal against the said judgement if aggrieved. The application dated August 22, 2022 is not merited and I dismiss it with costs. Having found so I find that the judgement still stands and the first application dated May 19, 2022 is merited and I grant the following orders;1.That the defendants to comply with the court order issued on March 23, 2022 within the next 60 (sixty) days after service of this order failure of which they will be cited for contempt and be directed to pay a fine of Kshs 50,000/= each and in default, the defendants to be committed to civil jail for a period of one (1) month.2.The defendants to pay the costs of this application.It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 6TH DAY OF DECEMBER 2022.N A MATHEKAJudge