Case ID:166460

Nicholas Kundu Wanyama v Benson Kosgei Kibet & Jane Nyongesa [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 924 of 2012

Parties:

Nicholas Kundu Wanyama v Benson Kosgei Kibet & Jane Nyongesa

Date Delivered:

18 Nov 2020

Case Class:

Civil

Court:

Environment and Land Court at Eldoret

Case Action:

Ruling

Judge(s):

Stephen Murigi Kibunja

Citation:

Nicholas Kundu Wanyama v Benson Kosgei Kibet & Jane Nyongesa [2020] eKLR

Advocates:

Mr. Kibii for the 1st Defendant

Mr. Okango for Kiptoo for the Plaintiff

Court Division:

Environment and Land

County:

Uasin Gishu

Advocates:

Mr. Kibii for the 1st Defendant

Mr. Okango for Kiptoo for the Plaintiff

Case Outcome:

Application dismissed with costs

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET

E & L CASE NO. 924 OF 2012

NICHOLAS KUNDU WANYAMA..............................................PLAINTIFF

VERSUS

BENSON KOSGEI KIBET...............................................1

ST

DEFENDANT

JANE NYONGESA...........................................................2

ND

DEFENDANT

RULING

[

NOTICE OF MOTION DATED 28

TH

FEBRUARY, 2020 BY 2

ND

DEFENDANT

]

1. The 2

nd

Defendant vide Motion dated 28

th

February, 2020 seeks for stay of these proceedings pending the hearing and determination of Eldoret Civil Appeal No. 140 of 2007, between

Stephen Nyongesa

Karibu

and

Nicholas Kundu

and costs. The application is predicated on the five grounds on its face, and supported by the affidavit sworn by

Jane Nyongesa

, the 2

nd

Defendant, on the 28

th

February, 2020. It is the 2

nd

Defendant’s case that the issues in the said appeal are substantially in issue herein, and to avoid a situation where two courts are likely to come to different decisions over the same subject matter, then this application should be allowed. That the appeal emanated from

Eldoret CMCC No. 1031 of 1998

between the Plaintiff herein, and her late husband over ownership of the suit land. That her late husband filed the appeal but passed on before it could be decided. That the 2

nd

Defendant is the legal representative of the estate of the Appellant and has obtained Grant of Letters of Administration in

Eldoret High Court Succession Cause No. 306 of 2012

issued on 23

rd

January, 2013.

2. The application is opposed by the Plaintiff through his replying affidavit sworn on the 13

th

March, 2020. The Plaintiff’s case is that the appeal filed by Stephen Nyongesa who passed on the 5

th

July, 2008 abated on the 5

th

July, 2009. That the 2

nd

Defendant while aware of the appeal, and before applying for letters of administration to the estate of the deceased, transferred the suit land to the 1

st

Defendant on 30

th

May, 2012. That the 2

nd

Defendant has approached the Court with unclean hands and the application is aimed at delaying justice.

3. The 1

st

Defendant’s learned Counsel filed their undated submissions on 3

rd

June, 2020 while the learned Counsel for the 2

nd

Defendant filed theirs dated 18

th

June, 2020 erroneously headed

“PLAINTIFF’S/APPLICANT’S SUBMISSION…”

The learned Counsel for the Plaintiff filed theirs dated 25

th

June, 2020, and the 2

nd

Defendant’s Counsel filed further submissions dated the 28

th

June, 2020.

A. The 1

st

Defendant in his submissions indicated that they are not opposed to the 2

nd

Defendant’s application as the issues in the pending appeal are substantially the same as in the suit. The learned Counsel cited the decisions in

Hangzhou Agrochemical Industries Ltd Vs Panda Flowers Ltd [2012] eKLR

,

Ga Life

Assurance Ltd Vs St. Elizabeth Academy Karen Ltd [2019] eKLR

,

Attorney General of the Republic of Uganda Vs East African Law Society [2013] eKLR

and Nigeria Court of Appeal case of

Mobil Producing Nigeria Unlimited Vs His Royal Highness Oba Yinusa A. A. C. A./L/255/05

.

B. The Learned Counsel for the 2

nd

Defendant submitted that the 2

nd

Defendant did not know of the existence of the lower court suit, and appeal between her late husband and the plaintiff herein, until after this suit was filed. That she tried to trace the appeal’s file without success, and applied for a skeleton file to be reconstructed to enable the appeal to be heard. That unless their application is granted, this court may have two contradicting decisions that may embarrass the court. The learned Counsel referred to the Court of Appeal case of

Butts Vs Rent Restriction Tribunal [1982] KLR 417

, and

Section 6 of the Civil Procedure Act

.

C. The learned Counsel for the Plaintiff submitted that the 2

nd

Defendant has not discharged her evidential duty for granting of her application. That upon the death of Stephen Nyongesa, the Appellant in the appeal on the 5

th

July 2008, the suit abated on 5

th

July, 2009 after one year, under

Order 24 Rule 3 of the Civil Procedure Rules

. The learned Counsel cited the decision in the case of

Babubhai M. Shah Vs M & M Science Ltd [2015] eKLR

,

Rebecca Mijede Mungole & Another Vs Kenya Power & Lighting Company Ltd & 2 Others [2017] eKLR

,

John Mutai Mwangi & 26 Others Vs Mwenja Ngure & 4 Others, Civil Application No. 126 of 2014

,

Charles Wanjohi Wathuku Vs Githinji Ngure & Another, Civil Application No. 9 of 2016

,

Macfoy Vs United Africa Co. Ltd [1967] 3 A11 ER

at page 1172 which was acknowledged, and adopted in

Virginia Mwari Thuranira Vs Purity Nkirote Thuranira [2017] eKLR

,

Samuel Kiiru Gitau Vs John Kamau Gitau Hccc No. 1249 of 1998, KLR

and

Owners of Motor Vessel “Lilian S” Vs Caltex Oil (Kenya) Ltd [1989] eKLR

. It is the learned Counsel’s submissions that abatement of the appeal upon one year lapsing from the date of death of the Appellant marked the end of the appeal as no advantage was taken to substitute him as per the proviso. That the 2

nd

Defendant has all along known of the facts in the appeal, and this case cannot be halted to await the outcome of an appeal that does not exist, as no evidence has been tendered to show the appeal has been revived after abatement. That the Court is with jurisdiction to hear and determine this suit, and the application should be dismissed with costs.

D. the Learned Counsel for 2

nd

Defendant in their further submissions stated that

Order 24 Rule 3 of the Civil Procedure Rules

relates to original suits, and not appeals, and therefore do not apply in this matter. That the decision in

Babubhai M. Shah Vs M & M Science Ltd (supra)

had been pursuant to an application for mandatory injunction under

Order 50 Rule 1, Order 40 Rule 2(i) of Civil Procedure Rules

, and

Sections 1A, 1B, and 3A of Civil Procedure Act

, while the current application is for stay of proceedings order under

Order 47 Rule 6 of Civil Procedure Rules

,

Section 1A, 1B, 3A, 6, 16, 17 and 18 of Civil Procedure Act

. That further, that decision being from a court of concurrent jurisdiction is not binding to this court. That they had attached an application dated 11

th

November, 2013 for the revival of the appeal and substitution through their list of documents filed on 25

th

February, 2014. That the Court should peruse the entire record and see a further list of documents dated the 26

th

February, 2016, and see the steps the 2

nd

Defendant had taken to revive the appeal, and to be substituted for the deceased appellant. That as the lower Court in

Eldoret CMCC No. 1031 of 1998

,

Nicholas Kundu Wanyama Vs Stephen Nyongesa Karibu

concluded the dispute on merit then this Court has to allow their application.

4. The following are the issues for the Court’s determinations;

(a) Whether Eldoret HCCA No. 140 of 2007, Stephen Nyongesa Karibu Vs Nicholas Wanyama is pending or abated; or

(b) Whether these proceedings are sub-judice Eldoret HCCA No. 140 of 2007.

(c) Whether stay order should issue.

(d) Who pays the costs of this application?

5. The Court has carefully considered the grounds on the application, the affidavit evidence filed, the written submissions by the three learned Counsel, the superior courts’ decisions cited thereon, and come to the following determinations;

(a) That grounds 2 and 3 of the application, and paragraphs 4 and 5 of the supporting affidavit, leaves no doubt that the 2

nd

Defendant’s basis of seeking stay of these proceedings is to await the determination of

Eldoret HCCA No. 140 of 2007

which emanated from the decision made in

Eldoret CMCC No. 1031 of 1998

in favour of the Plaintiff herein, who was also the Plaintiff thereon, against Stephen Nyongesa Karibu, the late husband to the 2

nd

Defendant herein. That for there to be reasonable basis to seek stay of an active court proceedings so as to await the decision of another suit or appeal, such other matter must be active or pending. Otherwise, it would be defeatist and unreasonable to seek to stay an active court matter while the matter being awaited to be decided is already finalized in one way or another as per the law.

(b) That the Plaintiff’s objection or opposition to the application is that

Eldoret HCCA No. 140 of 2007

having abated on or about 5

th

July 2009, which was after one year lapsed from 5

th

July, 2008 when the Appellant died without any substitution or the suit being revived to-date, then there are no basis of staying these proceedings. That the learned Counsel for the 2

nd

Defendant attempted to adduce evidence through written submissions, including referring the court to an application dated 11

th

November, 2013 made in the appeal, and attached to the 2

nd

Defendant list of documents herein, that ought to have been deponed to and attached to the supporting affidavit for it to be admissible in evidence, and for consideration by the court. That the 2

nd

defendant should have gone further, and disclosed the status of their application to revive the appeal, and the stage the appeal was if at all it was pending. That without such evidence, the deposition by the Plaintiff that the appeal abated on the 5

th

July, 2009 remains unchallenged or unrebutted. That the appeal having abated pursuant to

Order 24 rule 3 of Civil Procedure Rules

as submitted by the learned Counsel for the Plaintiff, then there is no pending suit that may be the basis of staying the proceedings herein.

(c) That the contention by the 2

nd

Defendant’s learned Counsel that

Order 24

that deals with abatement does not apply in appeals does not hold water. That in

Kent-Knit (K) Ltd Vs Ali Bakari [2008] eKLR

, the Court had the following to say about

Order 23 of Civil Procedure Rules

[which is today Order 24 of the Civil Procedure Rules, 2010]

;

“As for the provision of Order 23 Rule 8(2)…it is true they provide for a suit to be revived by a Plaintiff or his legal representatives. However, an appellant is the same as a Plaintiff otherwise, the provision of the whole of that order would not apply to appeals, and that would mean that appeals would not abate if one party passes away…”

That further, the Court of Appeal in

George Mbiti Kiebia & Another Vs Isaya Theuri M’Lintari & Another [2014] eKLR

, at paragraph one of its judgment acknowledged that an appeal do abate when they expressed themselves thus;

“…The 1

st

appellant is deceased and his appeal has abated…”

That the provision of

Order 24 of the Civil Procedure Rules

has variously been taken by the Courts not to be a technicality that can be cured or accommodated under

Article 159 of the Constitution

, and helps the Courts to dispense justice in a timely, just effective and cost-effective manner as dictated by

Sections 1A and 1B of the Civil Procedure Act

.

(d) That as the

Eldoret HCCA No. 140 of 2007

has been found to have abated, the only suit that has dealt with the subject matter herein on merit is

Eldoret CMCC No. 1031 of 1998

which was decided on the 17

th

July, 2006 in favour of the Plaintiff in that case, who is also the Plaintiff herein. That suit was disclosed in the Plaintiff’s pleadings, and as the registration of the suit land has since changed hands, the issue of res-judicata do not arise as the 1

st

Defendant, who is currently registered with the land was not a party in the previous suit.

(e) That having come to the finding that the 2

nd

Defendant has failed to establish reasonable basis for staying these proceedings, then she should pay the Plaintiff’s costs in the application.

6. That the foregoing shows that the 2

nd

Defendant’s Motion dated 28

th

February, 2020 has no merit, and is dismissed with costs.

Orders accordingly.

Delivered virtually and dated at Eldoret this 18

th

day of November, 2020.

S. M. KIBUNJA

JUDGE

In the presence of

:

Plaintiff: Absent.

Defendants: Absent.

Counsel: Mr. Kibii for 1

st

Defendant.

Mr. Okango for Kiptoo for Plaintiff.

Court Assistant: Christine

and the Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses.