David Githumbi Thande v Ishmael Kagunyi Thande [2021] KEELC 3834 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC CASE NO. 21 OF 2019

DAVID GITHUMBI THANDE......................................................PLAINTIFF/RESPONDENT

VERSUS

ISHMAEL  KAGUNYI THANDE.................................................DEFENDANT/ APPLICANT

RULING

The matter for determination is the Notice of Motion Application dated  15th February 2019 by the  Defendant/ Applicant seeking for  orders that;

1. That this  Honourable Court  be pleased to stay proceedings  in this suit pending  the hearing and determination  of Succession  Cause Number  619 of 2008 –NAIROBI , In the matter  of Estate of Peter Kariuki Thande.

2. That costs  of this Application be provided for.

The Application is premised on the grounds that  there exists a Succession  Cause filed at the High Court in Nairobi   in which the subject matter is the same  as the instant suit. That the Plaintiff/ Respondent and the Defendant/ Applicant are brothers and parties to the Succession Cause No.619 of 2008 as  beneficiaries and both  as Administrators  and in which  state they are fighting over  the properties  that form the subject matter  herein. That issues of fact and law for determination in both suits now filed in separate Courts with the jurisdiction over the land matter are similar. That Succession Cause No. 619 of 2008, is scheduled for hearing on 25th February 2019, and the Plaintiff/ Respondent is yet to file his Replying Affidavit and it all revolves around the land that both inherited from their father. That the instant  suit is a duplication  of the dispute being determined in the Succession Cause  and it is prejudicial to the Defendant/ Applicant  who has already filed an Application  seeking to  restrain the Plaintiff/ Respondent from  transferring  one parcel of land  to himself fraudulently,  while the land is for distribution to the Defendant. That the suit is an embarrassment to the integrity and honour of the Court process and the   Plaintiff/Respondent  should have awaited the determination of the Succession Cause.

Further that allowing  the suit to proceed  would be to entertain the danger of the two Courts  with jurisdiction over the subject  matter  to reach diverse  decision on the same issue   considering that the Plaintiff/  Respondent is not the registered owner  of the alleged properties cited in the Plaint and the cited properties are registered to Peter Kariuki   Thande,  their father  who is deceased and only a Succession Cause has jurisdiction  over such. Therefore, it is necessary that the instant suit is stayed awaiting the outcome of the Succession Cause.

In his  Supporting Affidavit,  Ishmael Kagunyi  Thande,  averred that on 21st January 2019, in Succession Cause  No. 619 of 2008, he filed an Application  seeking to restrain the  Plaintiff/ Respondent  from fraudulently and illegally  transferring one of the parcel of land  to himself while the parcel of land currently belongs to the deceased. That the Application was placed before Hon.  Justice Ongeri  on 28th January 2019, where the court gave directions and  a hearing date  was given  which the Plaintiff/ Respondent was well aware  and still instituted the instant suit. That in the Succession Cause, they seek proper distribution of the parcels of land forming part of the Estate of the Deceased. He also averred that he has been advised by his Advocate which advice he believes to be true that the only way to avoid an absurdity is to stay this suit until the Succession Cause is heard and determined.

The Application is opposed by the Plaintiff/Respondent David  Githumbi Thande  via a Replying Affidavit dated  12th July 2019, averred  that the Application is devoid of merit and that  Defendant/ Applicant together with one of their brother and Plaintiff are Administrators to the Estate of their father . That they have obtained a Confirmed Grant, with respect to the Estate of the Deceased and each beneficiaries share has been  fully ascertained   to the satisfaction of all  entitled beneficiaries  and there is no pending Application for rectification  of the confirmed grant, revocation or annulment. That vide Chamber Summons  dated 21st January 2019, filed in the Succession Cause,  the Defendant/ Applicant  seeks order  that a temporary Injunction  restraining the registration of L.R 11360/458 in the names of David  Githumbi Thande be issued directing that the distribution of the Estate shall only be in accordance with  the Certificate of Confirmation of Grant. Further that an order that the Defendant/ Applicant is the lawful beneficiary of  L.R 11360/458, and entitled to be registered as the proprietor .

That the Application is a non starter and unprocedural  as it is not properly before the Family Court  as the same touches on matter of ownership and title to land. That he has filed a Replying Affidavit and Notice of Preliminary objection relating to the said Application. That as can be ascertained from the Certificate of Confirmation of Grant, there is no land known as L.R 11360/458, that has been distributed by the  Family Court  and the Court thus cannot make orders  relating to this land. That the said property came about after the consolidation of the Deceased two properties  known as L.R No. 11360/1 and L.R 11360/4,  and the subdivision  of the emergent  75 acre block of land  creating numerous  and fragmented plots   of various diverse  sizes  and the  four (4) entitled beneficiaries   agreed on who was to take  what portion on the ground  and ultimately all the Administrators   including the Defendant/ Applicant  executed a Deed of transfer  for the said property  in his favor.  That the decision on as to who is entitled to what on the ground  is a matter  squarely falling  on this Court, after taking the evidence by the parties . That his claim against the Defendant/ Applicant is under the tort of trespass for unauthorized encroachment upon the subject property, forcible detainment  of the Deed Plan  and raises issue of ownership  and title, which matters cannot be litigated by the Family Court.

That there is no logical  or legal basis  to stay the hearing  of the instant suit  pending the hearing and determination of the Application in the Family Court. That the Defendant/ Applicant has no Defence to the instant suit  and the  instant Application is an attempt to procrastinate  his right to  an expeditious trial. That he is not obliged to await  the outcome of the  Application filed  before the Family Court  and especially in light  of the fact that the same  is misconceived, ill advised and has been filed before  the wrong forum.It was his contention that the Defendant/ Applicant has not met the  threshold  for grant of orders of stay of proceedings.  Further, that he has not demonstrated what prejudice  he may suffer  in the event that the suit is heard to its logical conclusion.

The Defendant/ Applicant filed a  further Affidavit sworn on  31st July 2019, and averred that his Application is merited as they   cannot have  2 suits touching on the same  subject matter running parallel to each other. That the property in question is registered in the name of the Deceased and therefore forms part of his estate and only the Succession Court can address the dispute in question. That the Plaintiff/Respondent should channel his objection on matters filed in the Family Court to the said Court. Further that L.R 11360/458 does not appear  in the Certificate of  Confirmation of Grant,  which is a non-issue as the property is a creation arising  out of subdivision of property  known as L.R 11360/1 and 111360/4. That the dispute as to who inherits the property remain a preserve of the Family Court,  and the Court would not address an issue that is active and pending  before a different court. That the filing of the  this suit  while the Application was pending  in the Family Court was an abuse of the Court process.

The  Application was canvassed by way of written submission which this Court has carefully read and considered.

The issue for determination is whether the   Defendant/ Applicant  is entitled to the orders sought.

The Applicant has sought  for stay of proceedings  pending the hearing and determination of the Succession   Cause  No.  619 of 2008 that is similar to the instant suit.

In deciding whether or not to grant stay of proceedings, the Court in the case of; Global Tours & Travel limited (Nairobi) H.C. Winding up Cause No. 43 of 2000 quoted with approval in Kenya Wildlife service …Vs… Mutembei (2019) Eklr, held that;

“Thecourt stated; As I understand the law whether or not I grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of Judicial Discretion to be exercised in the interest of justice. The sole question is whether it is in the interest to order a stay of proceedings, and if it is on what terms it should be granted.

In deciding whether to order a stay, a court should essentially way the pros and cons of granting or not granting the order, and in considering those matters it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal in the sense of not whether it will probably succeed or not or whether it is an arguable one.

The scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”

The reasons as to why the Applicant is seeking the stay of the instant proceedings is because there is  a pending Application before the  Succession Court which is similar to the instant  suit. It was the Applicant’s contention that  there  run a risk of two different Courts litigating over the same issues and in order to allow the Succession   Court to hear and determine the matter, it is thus imperative that the Court  stay the instant proceedings.

However, it is not in doubt that the Court in the said Succession cause has since rendered its Ruling and disallowed the said Application. The Court held that as there is a dispute  before this Court in this matter  over ownership and that it would allow the Environmental & Land Court to deal with the issue.

As the Applicant’s Application was hinged  on the said Application, that has since been disallowed and therefore there are no two distinct suits over the same subject matter are pending, the Court finds and holds that there would be no reason  to stay the instant proceedings. In exercising its discretion the Court does not find any merit  in staying the instant proceedings as the substratum of the Application has collapsed and therefore it would not serve any interest.

Consequently, the Court finds and holds that the Application dated 15th February 2019, is not merited and the same is dismissed with costs.

The suit will not be stayed.  Let it proceed for hearing and be determined on merit.

It is s ordered.

Dated, signed and Delivered at Thika this 25th  day of March 2021

L. GACHERU

JUDGE

25/3/2021

Court Assistant - Dominic

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Wachira for the Plaintiff/Respondent

Mr. Omondi for the Defendant/Applicant

L. GACHERU

JUDGE

25/3/2021