Case ID:173271

Charles Munene Gatimu & another v Ernest Omwenga &12; others [2021] eKLR

Case Metadata

Case Number:

Environmentand Land Case 288 of 2013

Parties:

Charles Munene Gatimu & Karegi Catherine Kamanja v Ernest Omwenga (Sued on his own behalf and as Chairman of Amani Self Help Group), Peter Kinyua, Abel Oyaro, Protas Mandela, John Ngige, Charles Akunga, Samuel Tuturi, Evans Obiero, Francis Ndirangu, Peter Kioko, Stephen Kibunja, Mary Wambui & Lucy Njeri

Date Delivered:

15 Mar 2021

Case Class:

Civil

Court:

Environment and Land Court at Nairobi

Case Action:

Ruling

Judge(s):

Antonina Kossy Bor

Citation:

Charles Munene Gatimu & another v Ernest Omwenga &12; others [2021] eKLR

Advocates:

Mr. John Were h/b for Mr. O. Momanyi for the 1st Plaintiff

Mr. John Were for the 2nd Plaintiff

Mr. Thomas Maosa for the Defendants

Court Division:

Environment and Land

County:

Nairobi

Advocates:

Mr. John Were h/b for Mr. O. Momanyi for the 1st Plaintiff

Mr. John Were for the 2nd Plaintiff

Mr. Thomas Maosa for the Defendants

History Advocates:

Both Parties Represented

Case Outcome:

Application dismissed with cost to the Plaintiffs

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

AT NAIROBI

ELC CASE NO. 288 OF 2013

CHARLES MUNENE GATIMU.........................................................................1

ST

PLAINTIFF

KAREGI CATHERINE KAMANJA.................................................................2

ND

PLAINTIFF

VERSUS

ERNEST OMWENGA

(Sued on his own behalf and as Chairman

of Amani Self Help Group)........1

ST

DEFENDANT

PETER KINYUA..............................................................................................2

ND

DEFENDANT

ABEL OYARO..................................................................................................3

RD

DEFENDANT

PROTAS MANDELA.......................................................................................4

TH

DEFENDANT

JOHN NGIGE...................................................................................................5

TH

DEFENDANT

CHARLES AKUNGA.......................................................................................6

TH

DEFENDANT

SAMUEL TUTURI..........................................................................................7

TH

DEFENDANT

EVANS OBIERO..............................................................................................8

TH

DEFENDANT

FRANCIS NDIRANGU...................................................................................9

TH

DEFENDANT

PETER KIOKO.............................................................................................10

TH

DEFENDANT

STEPHEN KIBUNJA....................................................................................11

TH

DEFENDANT

MARY WAMBUI...........................................................................................12

TH

DEFENDANT

LUCY NJERI..................................................................................................13

TH

DEFENDANT

RULING

The Defendants brought the application dated 2/3/2020 seeking to have this court stay the order it made on 5/2/2020 pending the determination of their intended appeal. The application was premised on the grounds that being aggrieved by this court’s decision, the Defendants had lodged a Notice of Appeal against this court’s order to proceed with the trial from the point which Lady Justice Loise Komingoi left the case instead of commencing the hearing afresh and that their appeal would be rendered nugatory if the hearing of this suit proceeded on 30/4/2020 as scheduled. The Defendants contended that they had made the application timeously and that the Plaintiffs did not stand to suffer any prejudice.

The application was supported by the affidavit of Ernest Omwenga sworn on 2/3/2020. He deponed that the matter came up before this court for directions on 5/2/2020 when the Defendants urged the court to start hearing

de novo

in light of the fact that Lady Justice Loise Komingoi had recused herself from hearing the case. He averred that the appeal they had lodged would be rendered nugatory if the hearing of this case proceeded on 30/4/2020 and added that the Plaintiffs would not suffer any loss or prejudice since there was no decree in place that was capable of being performed. He annexed a copy of the Notice of Appeal dated 6/2/2020.

The 2

nd

Plaintiff filed grounds of opposition to the application on 19/3/2020. The crux of her objection was that no appeal had been filed against this court’s decision and that the Defendants had failed to take steps towards filing the appeal. Further, that the Defendants had not obtained leave to appeal against this court’s decision. The 2

nd

Plaintiff surmised that this was yet another attempt by the Defendants to delay the finalisation of this dispute and added that the Defendants had failed to demonstrate any prejudice they stand to suffer if the hearing of the case proceeds from where it had reached.

Parties filed submissions which the court has had the benefit of reading. The Defendants submitted that they would suffer irreparable loss if the orders sought are not granted as they desire to exhaust the appeal process under the legal framework in Kenya. On the contention by the Plaintiffs that they did not seek the court’s leave to appeal, the Defendants maintained that that was now a matter within the ambit of the Court of Appeal. They argued that it was not necessary to obtain the court’s leave to lodge the appeal. They relied on Order 42 Rule 6(1) of the Civil Procedure Rules on the ingredients one has to prove for the court to grant them orders of stay which are that substantial loss will result if the order is not granted; the application is made without delay; and the applicant furnishes security for the performance of the decree that may ultimately be binding on him as ordered by the court as ordered by the court. The Defendants urged the court to exercise its discretion judiciously while reiterating that the Plaintiffs had not demonstrated what prejudice they will suffer if the orders they seek are not granted.

The 1

st

Plaintiff submitted that a party aggrieved by an order made pursuant to Order 18 Rule 8(1) of the Civil Procedure Rules which allows a court to deal with evidence adduced before another judge would be required to seek leave to appeal against such an order which the Defendants had failed to do. The 1

st

Plaintiff emphasised that there was no law requiring that part heard cases had to start

de novo

. The Plaintiff contended that the Defendants had employed delaying tactics to ensure that the hearing of this suit stalled since 2018. The 1

st

Plaintiff insisted that the Defendants have not been denied an opportunity to present their case and added that they had not demonstrated what prejudice they stand to suffer if the court does not grant the orders they seek. The 1

st

Plaintiff urged the court to direct the Defendants to deposit security of Kshs. 20 million in court in court which he gave as the value of the subject matter of this suit.

The 2

nd

Plaintiff contended that the Defendants did not have a right to appeal against this court’s decision under Order 43 without first obtaining leave of the court. The 2

nd

Plaintiff submitted that the Defendants had neither applied for proceedings nor had they extracted the order that they seek to appeal against. She urged that the present application was a delaying tactic by the Defendants who have never been ready to proceed with their case. She urged the court to take the Defendants’ conduct in this matter into consideration and not exercise its discretion in their favour.

She submitted that the Defendants had not met the threshold for the grant of the orders they seek. She urged that stay of proceedings was a serious interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, which should not be imposed unless the proceedings ought not to be allowed to continue beyond all reasonable doubt. She further urged that the court needed to consider factors such as the need for the expeditious disposal of cases, the prima facie merits of the intended appeal and the optimum utilisation of judicial time. She concluded that the Defendants had not taken steps in filing their appeal which in her view demonstrated their intention to frustrate the Plaintiffs’ pursuit for justice.

The issue for determination in this ruling is, should the court grant the orders sought by the Defendants? The Plaintiffs case was heard by Komingoi J. before the Defendants applied for Judge Komingoi to recuse herself from hearing the case. The file was placed before the Presiding Judge of the Environment and Land Court who allocated it to me. When the matter came up for directions before this court on 5/2/2020, the Defendants’ advocate intimated to the court that they wished to have the hearing of the suit start afresh so that the court could observe the demeanor of the witnesses. The Plaintiffs opposed that application and the court directed that the hearing would proceed from the point where Komingoi J. left off.

On the question of the Defendants taking steps to progress their appeal, the court record shows that the Defendants applied on 11/2/2021 to extract the order which they wish to challenge on appeal, almost a year after the court made that order. There is no record of an application being made by the Defendants for copies of the proceedings for them to pursue their appeal so that they do not delay the finalisation of this dispute. The court notes that the proceedings have already been typed and placed in the court file. A glean through the typed proceedings confirms that the Defendants are in occupation of the Suit Property.

Looking at the facts of this case and taking into consideration the Defendant’s conduct in this case, the court is not satisfied that proceedings in this case ought not to be allowed to continue as the Defendants seek.

The application dated 2/3/2020 is dismissed with cost to the Plaintiffs.

DELIVERED VIRTUALLY AT NAIROBI THIS 15

TH

DAY OF MARCH 2021

K. BOR

JUDGE

In the presence of: -

Mr. John Were holding brief for Mr. O. Momanyi for the 1

st

Plaintiff

Mr. John Were for the 2

nd

Plaintiff

Mr. Thomas Maosa for the Defendants

Mr. V. Owuor- Court Assistant