Caroline Akumu Nyandiero v Betty Akinyi Ochieng, Josephine Malatya & Land Registrar, Mombasa [2020] KEELC 3561 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MOMBASA

ELC NO. 407 OF 2017

CAROLINE AKUMU NYANDIERO................................PLAINTIFF

VERSUS

BETTY AKINYI OCHIENG...................................1ST DEFENDANT

JOSEPHINE MALATYA........................................2ND DEFENDANT

LAND REGISTRAR, MOMBASA........................3RD DEFENDANT

RULING

(Application seeking to reinstate a suit that was dismissed after a preliminary objection; suit commenced by a plaint which was not signed; preliminary objection raised that the suit is defective; counsel for the plaintiff not appearing for the hearing of that preliminary objection and preliminary objection allowed; suit struck out; plaintiff now seeking a reinstatement of the suit; plaintiff arguing that his erstwhile counsel was not served; there being clear evidence that her counsel was served for the hearing of the preliminary objection; no overture made to correct the anomaly in the plaint; application dismissed.)

1.  The application before me is that dated 31 May 2019 filed by the plaintiff. The prayers sought in the application are as follows :-

(i) Spent

(ii) That leave be granted to the firm of Mwaniki Gitahi & Partners Advocates to come on record for the plaintiff/applicant.

(iii) That decree given by the court on the 3rd March 2019 be set aside and the Land Registrar be directed to cancel the provisional title issued to the applicants pursuant to the said orders.

(iv) Spent

(v) That costs be provided for.

2.  The application is opposed.

3.  To put matters into context the applicant filed a purported plaint on 10 November 2017 through the law firm of M/s Odindiko & Company Advocates. I say purported because that plaint was not signed. That plaint avers that the plaintiff was the owner of the land parcel Mombasa/Mwembelegeza/457 having purchased the same for a consideration of Kshs. 6,000,000/= from the 1st defendant. It is averred that in the year 2016, the 1st defendant entered into a loan agreement with the 2nd defendant where a sum of Kshs. 520,000/= was advanced to the 1st defendant and the suit property used as security but without the knowledge of the plaintiff. It was pleaded that the 2nd defendant was in the process of transferring the title into her name. In the plaint, the plaintiff  sought an order to permanently restrain the defendants from interfering with the suit land. Together with the plaint, the plaintiff filed an application seeking orders that pending hearing of the suit, the defendants be restrained from interfering or transferring the suit land. Nothing was filed to oppose the application and the same was allowed on 29 November 2017 by Komingoi J.

4.  On 16 August 2018, the 2nd defendant filed a Notice of Preliminary Objection that the suit offends the mandatory provisions of Order 2 Rule 16 and Order 5 Rule 1 (5) of the Civil Procedure Rules. Order 2 Rule 16 requires that every pleading be signed, whereas Order 5 Rule 1 (5) requires that Summons be prepared by the plaintiff and be filed with the plaint. The preliminary objection was heard by Omollo J, on 4 March 2019. On that date, only Mr. Apollo Muinde, learned counsel for the 2nd defendant was present. Counsel for the plaintiff did not appear to argue the preliminary objection despite being served. The preliminary objection was heard and allowed on the same day. The learned Judge wondered why no step had been taken to rectify the anomaly in the plaint despite the Notice of Preliminary Objection and also wondered why the plaintiff’s counsel did not appear. The court concluded that this was a demonstration of indolence or lack of interest by the plaintiff in the matter. The result was that the entire suit was struck out.

5.  It is upon that dismissal that this application was filed and as I had earlier set out among the orders sought is the reinstatement of the suit. The application is founded upon the grounds that the application dated 24 February 2019 was never served upon her previous advocates; that the respondent knows the applicant very well but she never disclosed this to the court; that the 2nd defendant has filed no defence in the matter; that the 2nd defendant has illegally transferred the suit land to her name despite there being a court order; and that the applicant stands to suffer great loss if the application is not allowed.

6. The application is opposed by the 2nd defendant who has filed a Replying Affidavit. She has deposed inter alia that firstly the application is defective for the supporting affidavit is sworn before a person who purports to be an Advocate and Commissioner for Oaths yet his status in the Law Society of Kenya’s website is shown to be inactive. She has also deposed that counsel previously on record for the plaintiff was well aware of the date for the hearing of the preliminary objection and has referred to the affidavit of service filed.

7.  I have considered the application. First on the coming on record of the law firm of M/s Mwaniki Gitahi & Company, that is allowed. The other prayer seeks the reinstatement of this dismissed suit. It is partly alleged that the preliminary objection was heard without there being service on the part of counsel then on record for the plaintiff. That cannot be true. I have seen the affidavit of service filed before the preliminary objection was heard. It provides that M/s Odindiko & Company Advocates were served with the hearing notice and the hearing notice is attached. That hearing notice shows that the law firm of M/s Odindiko & Company Advocates, did receive the hearing notice and appended their stamp and signature on it. I do not see how it can be argued that the said law firm was never served despite such clear evidence. Of course, when counsel for the plaintiff failed to appear to defend the preliminary objection, and there was no overture to remedy the defect in the plaint, the court had little option but to dismiss the suit for being defective. Even within this application there is no concession by the plaintiff that her plaint is defective and no offer to rectify the anomaly. Given that position, I do not see how I can reverse the orders of 4 March 2019. It is thus not necessary for me to go into the other grounds raised by the 2nd defendant in her reply in opposing this application. I proceed to dismiss this application with costs to the 2nd defendant.

8.  Not having been persuaded to reverse the order of 4 March 2019 which dismissed this suit, this suit remains so dismissed and any interim orders made are vacated.

9.  If the plaintiff is so minded, she is at liberty to file a fresh suit.

10.  Orders accordingly.

DATED, SIGNED and DELIVERED at MOMBASA this 12th day of February, 2020.

_______________

MUNYAO SILA,

JUDGE.

IN THE PRESENCE OF: