Case ID:184745

Berano M’Mwithiga M’Arauki v District Land Adjudication and Settlement Officer Tigania Eash and West & 2 others [2021] eKLR

Case Metadata

Case Number:

Petition 5 of 2014

Parties:

Berano M’Mwithiga M’Arauki v District Land Adjudication & Settlement Officer Tigania Eash & West, Attorney General & Peter Imathiu

Date Delivered:

03 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Ruling

Judge(s):

Christopher Kyania Nzili

Citation:

Berano M’Mwithiga M’Arauki v District Land Adjudication and Settlement Officer Tigania Eash and West & 2 others [2021] eKLR

Advocates:

Mutisya for 3rd respondent

Kieti for 1st and 2nd respondents

Maitai Rimita advocates

Court Division:

Environment and Land

County:

Meru

Advocates:

Mutisya for 3rd respondent

Kieti for 1st and 2nd respondents

Maitai Rimita advocates

History Advocates:

Both Parties Represented

Case Outcome:

Application disallowed

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 MERU

ELC PETITION NO. 5 OF 2014

BERANO M’MWITHIGA M’ARAUKI..........................................................................PETITIONER

VERSUS

DISTRICT LAND ADJUDICATION & SETTLEMENT

OFFICER TIGANIA EASH & WEST...................................................................1

ST

RESPONDENT

THE HON. ATTORNEY GENERAL...................................................................2

ND

RESPONDENT

PETER IMATHIU ................................................................................................3

RD

RESPONDENT

RULING

1. The application dated

12

th

March 2012

seeks review of the orders made on

14

th

July 2020

. The same is supported by grounds on its face and a supporting affidavit sworn on

12

th

March 2021

by

Barano M’Mwithiga M’Arauki

. The main ground is that the applicant has filed a citation in

Tigania PMC Misc succession Cause No. 63 of 2019

for the 3

rd

respondent’s son to refuse or accept appointment as an administrator.

2. The application is opposed through a replying affidavit sworn on 19.7.2021 by the 3

rd

respondent’s counsel,

Mr. C.P. Mbaabu advocate

in which he has attached a death certificate showing his client passed on

1.4.2018

. He avers the suit abated by operation of law and that the alleged citation has never been served upon the cited

Bernard Kibari

. He urges the court to find the application lacking merits or basis in law.

3. On the side of 1

st

and 2

nd

respondents, indication was made before the court on

29.9.2021

by

Mr. Kieti advocate

, that they were not opposing the application.

4. The petition herein was filed on

31.3.2014

seeking to impugn the 1

st

respondent’s decision made on

22.10.2013

over

Parcel No. 1472 Ankamia Adjudication Section.

5. The 3

rd

respondent opposed the petition largely on the basis that the correct procedure would have been to file a Minister’s appeal under Section 29 of Cap 284 instead of a petition.

6. A preliminary objection to that effect was heard and dismissed on

30.12.2008

at which time apparently the 3

rd

respondent was already dead. On 13.5.2019 the court was notified of the death and the applicant was given more time on various date between

24.9.2019, 28.11.2019, 19.2.2020

and

25.6.2020

leading to a ruling on 14.7.2020 in which the court pronounced itself on abatement of the suit against the 3

rd

respondent. No appeal was ever made over the abatement order.

7. On 28.10.2020, parties agreed by consent to file written submissions with regard to the main petition with a mention date for

9.2.2021

to confirm compliance. To date no party including the petitioner has ever complied with those directions.

8. With the above background I now turn to the application. In an application for review of an order, the applicant must meet the prerequisites namely discovery of new and important matter of evidence which after the exercise of due diligence was not within his knowledge or could not have been procured by him at the time the order was made or for any other sufficient reason.

9. The reasons given in this application are that a citation was allegedly filed on

5.12.2020.

The said citation is also captured in the court’s ruling of

14.7.2020

. Consequently this court finds no new evidence or material to warrant review of its previous orders.

10. Secondly, the application is made under

Order 12 rule 1

. Assuming this was a typing error and the applicant meant

Order 31 rule 1

which refers to suits against administrators of estates there is no order brought to the attention of the court regarding

Tigania PMCC No. 63

of 2019 appointing a legal representative of the 3

rd

respondent.

11. On the aspect of reviving or reinstating a suit which has abated,

Order 24

is the one governing such a scenario and which the applicant has not invoked that Section. In any event, the issue is now

res judicata

given the ruling of 14.7.2020.

12. The applicant has not suggested the name of the person to be made a party as per

Order 24 rule 1

. The application must also be made within a year upon the demise of the party. This application ought to have been made by

30.4.2019

. However under

Order 24 rule 3

there is a proviso that the court may extend the period for a good reason.

13. In this application there is no such request for extension of the period, and even assuming this court was to invoke the overriding objective under

Section 1A, 1B and 3A

of the

Civil Procedure Act

as read together with

Article 159

of the

Constitution

, the applicant has not given any sufficient reason why the citation has not been prosecuted one way or the other for close to over 3 years.

14. Further this court ordered the disposal of the main petition by way of written submissions. There has been no compliance at all with those directives.

15. This is obviously an old matter. The record indicates it was filed on

31.3.2014

. Interim orders were issued on

2.4.2014

. The petition was filed under the provisions of

Article 22

of the Constitution.

Rule 3 of the Constitution of Kenya (protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

provides the overriding objective is to facilitate access to justice as per

Article 48

and shall be interpreted as per

Article 259 (1)

so as to advance the bill of rights, values and principles in

Article 10.

While exercising its jurisdiction under the rules the court shall facilitate the expeditious, just, proportionate and affordable resolution of all cases, by just determination, efficient use of the available judicial and administrative resources, timely disposal of proceedings at a cost affordable manner and use of appropriate technology.

16.

Rule 3 (8)

thereof states:

“Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

17. In this petition, the record shows there has been blatant disregard of court directions leading to delay of the matter. The court has been very lenient to the petitioner including granting interim orders for over seven years. The petitioner has had more than enough time to enjoin the intended legal representative and or file written submissions since in a petition the law allows petitions to be determined through affidavit evidence. The deceased 3

rd

respondent had sworn before his demise, a replying affidavit.

18. In

Counties Efficiency in Democracy –vs- Kenya Airports Authority Ltd. & Another interested Party one Way Cleaning Services Ltd. & 2 Others [2018] eKLR

Mumbi Ngugi J.

as she then was now Judge of Appeal held thus:

“The court record indicates a party who has no interest in pursuing its claim, such as it is and has taken advantage of the indulgence of the court to engage both the court and the respondents in a circus that should not be permitted to continue.”

19. My finding is the petitioner has taken advantage of the situation to endlessly delay the matter yet he has been enjoying interim orders for over seven years now. To accede to the prayers sought in the motion is to allow abuse of the court process to continue.

20. I disallow the application dated

12

th

March 2021

, vacate the interim orders issued on

2

nd

April, 2014

and dismiss the petition dated

29

th

March 2014

for non-prosecution with costs to the respondents.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 3

RD

DAY OF NOVEMBER, 2021

IN PRESENCE OF:

MUTISYA FOR 3RD RESPONDENT

KIETI FOR 1ST AND 2ND RESPONDENTS

MAITAI RIMITA ADVOCATES – ABSENT

COURT ASSISTANT - KANANU

HON. C.K. NZILI

ELC JUDGE