Beatrice Muthoni Gathima, Stanley Mugo Muiga & Rosebell Wanjiku v Arthur Wambugu Muiga, Apollo Karimi Muiga, Mirriam Muthoni Gathigi, Gladys Hiuko Wachira & Richard Gathigi Muiga [2022] KEELC 725 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYERI

ELC NO. E003 OF 2020

BEATRICE MUTHONI GATHIMA.......................1ST APPLICANT/PLAINTIFF

STANLEY MUGO MUIGA.....................................2ND APPLICANT/PLAINTIFF

ROSEBELL WANJIKU...........................................3RD APPLICANT/PLAINTIFF

-VERSUS-

ARTHUR WAMBUGU MUIGA.......................1ST RESPONDENT/DEFENDANT

APOLLO KARIMI MUIGA............................2ND RESPONDENT/DEFENDANT

MIRRIAM MUTHONI GATHIGI.................3RD RESPONDENT/DEFENDANT

GLADYS HIUKO WACHIRA.......................4TH RESPONDENT/DEFENDANT

RICHARD GATHIGI MUIGA......................5TH RESPONDENT/DEFENDANT

RULING

1. By the Notice of Motion dated 22nd October, 2020 but filed herein on 13th November 2020, Beatrice Muthoni Gathima, Stanley Mugo Muiga and Rosebell Wanjiku (the Plaintiffs) pray for orders:

3. That the Defendants/Respondents by themselves, agents or servants be restrained by an order of this Court from developing, transferring, charging and or in any other way alienating land parcels numbers Mahiga/Munyange/1087, 1088, 1089. 1090, 1091, 1092, 1093, 1094, 1096 and 1097 pending the hearing and determination of the suit herein.

4. That a prohibitory order be issued prohibiting dealings in land Parcels numbers Mahiga/Munyange/1087, 1088, 1089, 1090, 1091, 1092, 1093, 1094, 1096, 1097 and Plot No. 20 Ndunyu Market pending the hearing and determination of the suit herein.

5. That the 1st Respondent be ordered to deposit to the Honourable Court compensation monies to the tune of Kshs.202,630/- for the sale of 0. 067 Ha. out Mahiga/Munyange/165 which amount has been unaccounted for to date pending the hearing and determination of the suit herein.

6. That the 1st, 2nd and 5th Defendants/Respondents be ordered to re-open the 3rd Plaintiff’s/Applicant’s house which they illegally locked and that further they be restrained by an order of this Court from interfering with the 3rd Plaintiff’s/Applicants occupation and use of the said house pending the hearing and determination of the suit herein.

2. The application which is supported by an affidavit sworn by the 1st Plaintiff is premised on the grounds:

(a) That the 1st and 2nd Respondents illegally and irregularly caused sub-division of Land Parcel Number

Mahiga/Munyange/65 without notifying the applicants and no

beacons were placed on the ground to mark the boundaries;

(b) That a permanent house built by the 1st Applicant is at risk of being demolished by the 1st Respondent as he now claims that the land on which it stands belongs to him;

(c) That the parcels of land meant for the Plaintiffs/Applicants are now registered in the names of the 1st and 2nd Respondents and there is likelihood of the said Respondents dealing with the properties to the detriment of the Plaintiffs;

(d) That the 3rd Plaintiff has now been left homeless despite having a home as the home has been illegally locked; and

(e) That unless the orders sought are granted, the Plaintiffs will be disinherited by the 1st and 2nd Defendants.

3. The application is opposed by the five Defendants – Arthur Wambugu Muiga, Apollo Karimi Muiga, Miriam Muthoni Gathigi, Gladys Hiuko Wachira and Richard Gathigi Muiga. In a Replying Affidavit sworn on their behalf by the 1st Defendant and filed herein on 26th July 2021, the Defendants accuse the Plaintiffs of abusing the Court process and assert that the issues raised herein should be determined by the Court that issued the Certificate of Confirmation of Grant on 23rd August, 2013.

4. The Defendants aver that the 1st Plaintiff had, in association with her children and other parties filed a similar application dated 8th November, 2016 in Nyeri High Court Succession Cause No. 40 of 1990; In the Matter of the Estate of Muiga s/o Gathigi alias Batram Muiga (deceased). The 1st Defendant further avers he responded to the said application vide a Replying Affidavit sworn on 25th November, 2016 and the same matter remains pending for determination.

5. The 1st Defendant avers that the facts giving rise to the present suit and application are the Judgment and Decree issued in the said High Court Succession Cause No. 40 of 1990 and the matters in dispute should hence be left to that Court to decide as it is already seized of the matter.

6. Further and in addition to the Affidavit in reply, the Defendants have by a Notice of Preliminary Objection dated 21st July, 2021 objected to the Court’s Jurisdiction to entertain the entire suit on the grounds that the same is in contravention of:

(a) Section 6 of the Civil Procedure Act;

(b) Section 34(1) of the Civil Procedure Act; and

(c) That there is in existence a Judgment and a certificate of a Grant in Nyeri High Court Succession Cause No. 40 of 1990 where all the parties herein are also parties or are parties by representation.

7. Both the Plaintiffs’ application and the Defendants’ Preliminary Objection were canvassed by way of written submissions. I have carefully considered the rival submissions and authorities placed before me by the Learned Advocates for the parties.

8. By their suit filed herein on 13th November 2020, the three Plaintiffs pray for an order to issue declaring that the subdivision or partition of Land Parcel Number Mahiga/Munyange/65 and the subsequent registration of the resultant title deeds was irregular and illegal. They also pray for an order cancelling the registration of the resultant sub-divisions being Land Parcel Number Mahiga/Munyange/1087, 1088, 1089, 1090, 1091, 1092, 1093, 1094, 1095, 1096 and 1097 and urge that the said parcels do revert to the estate of Batram Muiga for proper administration under High Court Succession Cause No. 40 of 1990.

10. The Plaintiffs aver that both the Defendants and themselves are beneficiaries of the estate of the late Batram Muiga whose administration is the subject matter of the said Succession Cause. They accuse the 1st and 2nd Defendants herein of secretly and irregularly using their positions as the administrators of the said estate to sub-divide the land and apportion the sub-divisions to themselves and the other Defendants with a view to disinherit the Plaintiffs and deprive them of their lawful shares of the estate.

11. By their Motion dated 22nd October, 2020 the Plaintiffs urge the Court to grant orders of injunction and prohibition to restrain the Defendants from developing, transferring, charging or in any other way alienating the said sub-divisions pending the hearing and determination of the suit.

12. But in their response to the said application, the Defendants aver that both the suit and the application amount to an affront on the mandatory provisions of Sections 6 and 34(1) of the Civil Procedure Act in that the matters raised herein have been the subject of the said Nyeri High Court Succession Cause No. 40 of 1990 and that the Plaintiffs had in fact filed an application therein dated 8th

November, 2016 seeking orders of injunction and raising the very same issues which are the subject of this suit and the Plaintiffs’ application.

13. In their Supplementary Affidavit sworn and filed herein on 12th January 2022, the Plaintiffs assert that the Succession Cause only dealt with division of the estate among the beneficiaries and that as they awaited for their application for the rectification of the grant to be heard and determined, the 1st and 2nd Defendants issued them with notices to vacate from the portions of land that they had occupied. The Plaintiffs aver that it is then they came to realise that the original parcel of land had been sub-divided and titles had been issued for the resultant sub-divisions in the names of the Defendants.

14. It is the Plaintiffs case that in light of the new evidence, they did withdraw their application dated 8th November, 2016 as filed in the said Succession Cause and that on 8th March, 2021, the High Court delivered a Ruling declaring that the application was withdrawn and marking the succession matter as closed.

15. As it turned out, the Plaintiffs have not attached to their Supplementary Affidavit any evidence of their withdrawal of the application dated 8th November, 2016 and/or the orders issued on 8th March, 2021 declaring the application as withdrawn and the Succession Cause closed as they contend. Given that the existence of the said application was the main subject of the Defendants’ Preliminary Objection, one would have expected the Plaintiffs to provide clear and cogent evidence of its withdrawal in their Supplementary Affidavit filed after they were served with, and in response to, the Preliminary Objection.

16. In their Notice of Preliminary Objection dated 21st July 2021, the Defendants fault the Plaintiffs suit as well as their application for injunctive orders on account that the same are offensive to the provisions of Section 6 and 34(1) of the Civil Procedure Act.

17. Section 6 of the Civil Procedure Act provides as follows:

“6. Stay of Suit

No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under

the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.”

18. That Section thereby embodies the doctrine of res sub-judice in our laws. Pronouncing itself on the doctrine in Kenya National Commission on Human Rights -vs- The Attorney General & 17 Others(2020) eKLR, the Supreme Court of Kenya asserted as follows:

“(67) The term “sub-judice” is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of Courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that: there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before Courts of competent Jurisdiction and lastly; that the suits are between the same parties or their representatives.”

19. In the matter before me, it cannot be denied that the prayers sought by the Plaintiffs herein are generally of the same nature as those sought in their application dated 8th November, 2016 as filed in Nyeri High Court Succession Cause No. 40 of 1990. The subject matter in the earlier suit and this present one relates to the share of each of the parties herein of the parcel of land originally known as L. R No. Mahiga/Munyange/65 as well as Plot No. 20 situated in Ndunyu Market.

20. Arising from the foregoing, it is my finding that the issues raised in this suit are also substantially in issue in Nyeri High Court Succession Cause No. 40 of 1990; In the matter of the Estate of Muiga s/o Gathigi alias Batram Muiga (deceased). While it was contended that the application filed by the Plaintiffs in the earlier case had been withdrawn and marked as such by the Court, no evidence of such withdrawal or an order to that effect by the Court was produced by the Plaintiffs.

21. In the absence of any such evidence, it was apparent to me that this suit is sub-judice and that this Court should not proceed with the same. The sub-judice rule like other maxims of the law serves

a salutary purpose. The underlying object of the rule is to prevent Courts of concurrent Jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, same subject matter and the same relief.

22. The purpose is meant to pin down parties to one litigation so as to avoid the possibility of the Courts embarrassing themselves by issuing two or more contradictory verdicts in respect of the same relief.

23. In the premises herein and having determined that these proceedings are res sub-judice, I did not deem it fit to consider the other issues raised in the Defendants’ Notice of Preliminary Objection.

24. The upshot is that the Objection succeeds and these proceedings are hereby stayed pending determination of the application dated 8th November, 2016 as filed by some of the Plaintiffs in Nyeri High Court Succession Cause No. 40 of 1990.

25. The costs of the application shall be in the suit.

RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT NYERI THIS 24TH DAY OF MARCH, 2022.

In the presence of:

Ms Nyakeo for the Plaintiffs/Applicants

Mr. Karanja Mbugua for the Defendants/Respondent

Court assistant - Kendi

.....................

J. O. Olola

JUDGE