PRESS RELEASE. April 3, 2019. The Court of Appeal did NOT issue two contradictory rulings on the same matter
Court of Appeal at Nairobi, Case File: Civil Application No. 211 of 2018
FLORENCE SEYANOI KIBERA also known as DOROTHY SEYANOI MOSCHION …………………… APPLICANT
DEBORAH ACHIENG ADUDA………………………….1st RESPONDENT
RENE JOHNY DIERKX……………………………………2nd RESPONDENT
(An application for injunction and stay of execution of judgement of the Environment and Land Court (K. Bor, J) dated 27th September 2017
The Judiciary’s attention has been drawn to reports in sections of the media that the Court of Appeal issued two contradictory rulings in the above case. This is a false position which has potential to taint the image of the Judiciary, the Court of Appeal and the individual judge.
The correct position and the circumstances surrounding the matter are as follows:
The case involved a parcel of land in Karen, Nairobi, one acre of which Ms Florence Kibera is said to have sold to Deborah and Rene for Ksh 28 million in 2012. After receiving a deposit of Ksh 10 million, Ms Kibera is alleged to have changed her mind and instead leased it to a third party. The buyers moved to the Environment and Land Court. That court (Hon Lady Justice Bor) declared that Ms Kibera was in breach of the sale agreement. It ordered her to specifically perform her part of the obligation by transferring the one acre to the buyers within thirty (30) days of the date of the judgement.
It is that decision that Ms Kibera intends to challenge in the Court of Appeal but is yet to get copies of the proceedings from the Environment and Land Court. However in the meantime she applied to the Court of Appeal to stay the orders against her, pending the filing, hearing and determination of the intended appeal.
It is that application that was heard by Justices William Ouko, Daniel Musinga and Kairu Gatembu on November 29, 2018 and a ruling delivered on March 8, 2019. In the ruling the Judges found the application to be incompetent and dismissed it for having failed to address elementary principles for the grant of an order of stay of execution.
On March 8, 2019, Justice Milton Makhandia, was the judge on duty tasked to deliver Court of Appeal judgments and rulings, through rotational practice of the Court of Appeal. Because of sheer numbers of judgments and rulings to be delivered on any given day, it is a practice that, save in criminal appeals and complex matters of public interest, the duty judge only reads out the final orders of the Court. The written judgment or ruling is immediately availed to advocates and parties.
In the above case, owing to the large number of judgments and rulings, there was a human error and mixup. Hon. Judge Makhandia inadvertently read out a determination that was in respect of a different case which was to the effect that the application was allowed, when in fact Ms Kibera’s application had been dismissed.
Shortly upon return to his chambers, the Hon Judge realized the mistake, immediately called back the advocates and read the correct ruling that the application was dismissed.
Contrary to what M/S Kaluma & Miyare Advocates are contending that there were two parallel rulings, the Judges who heard the application confirm that there was only one ruling, which was made unanimously to dismiss the application with costs.
Further, the narrative that Justice Makhandia may have been compromised does not hold water because he was not even among the judges who heard the matter. His only duty was to read out the ruling.
The Judiciary would like to remind any person aggrieved by a decision of any court to follow the appellate process or seek a review before the same court.
Respect for the Judiciary as an institution, for court orders and for the rule of law, is the hallmark of a democratic and progressive society.
PUBLIC AFFAIRS AND COMMUNICATION