Industrial & Commercial Development Corportion v Reuben Arap Simotwo, Joseph Cherogony Cheserem, Wilson Kiprono Cheserem, Zipporah Rungo Amdanyi, Kipkoech Benjamin Talam, John Lemrkogo, Wilson Ruto Cherono, Solomon Chelagat, Mark Bune, Amos Tanui, James Kipsang Rono, Meos Matoke Musa, Grace Cherotich Mwangi, John K. Solit, Francis Kibor, Samuel Sitienei, Forence Livweke, Aaron Kulei, Henry Koech, Hosea Koech & Job Kelong [2017] KEELC 3171 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

ELC NO. 494 OF 2016

INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORTION...PLAINTIFF

VERSUS

REUBEN ARAP SIMOTWO………..........................……....…1ST DEFENDANT

JOSEPH CHEROGONY CHESEREM…..............................…2ND DEFENDANT

WILSON KIPRONO CHESEREM…………............................3RD DEFENDANT

ZIPPORAH RUNGO AMDANYI…………............................…4TH DEFENDANT

KIPKOECH BENJAMIN TALAM………..........................……5TH DEFENDANT

JOHN LEMRKOGO……………………...........................……6TH DEFENDANT

WILSON RUTO CHERONO………..…...........................……7TH DEFENDANT

SOLOMON CHELAGAT….......................................................8TH DEFENDANT

MARK BUNE…………………..…...........................…………9TH DEFENDANT

AMOS TANUI……………….............................…….........…10TH DEFENDANT

JAMES KIPSANG RONO….…............................….………11TH DEFENDANT

MEOS MATOKE MUSA…………............................………12TH DEFENDANT

GRACE CHEROTICH MWANGI……............................……13TH DEFENDANT

JOHN K. SOLIT……………..…..…….........................……14TH DEFENDANT

PST. FRANCIS KIBOR……….………….........................…15TH DEFENDANT

SAMUEL SITIENEI………………....…........................……16TH DEFENDANT

FORENCE LIVWEKE……………....................................…17TH DEFENDANT

AARON KULEI……………………..........................………18TH DEFENDANT

HENRY KOECH………….……….........................…......…19TH DEFENDANT

HOSEA KOECH………….……..................................……20TH DEFENDANT

JOB KELONG……………..…......................……..………21ST DEFENDANT

RULING

Introduction

1. Through a plaint filed in court on 15th November 2016, the plaintiff a corporate entity established pursuant to the Industrial and Commercial Development Corporation Act Chapter 445 Laws of Kenya commenced these proceedings. Pursuant to Section 3 (3) of the Act, the plaintiff is a body corporate with perpetual succession and a common seal, with power to hold land and to sue and be sued in its corporate name.

2. The plaintiff seeks an order that the defendants, their families and agents be evicted from all that land known as LR. No. 498/1085 and further be restrained from encroaching, entering, constructing or dealing with the said land.

3. The defendants entered appearance on 25th November 2016 and filed a defence on 2nd December 2016.

4. On 20th January 2017, the plaintiff filed Notice of Motion dated 20th January 2017 seeking the following orders:

1. …....

2. …....

3. THAT summary Judgment be entered in favour of the Plaintiff/Applicant as against the Defendants/Respondents jointly and/or severally as prayed in the plaint

4. THAT in the alternative, the defendants defence be struck out and judgment be entered in favour of the plaintiff as prayed in the plaint.

5. THAT costs of this application be borne by the Defendants/ Respondents.

5. It is this Notice of Motion dated 20th January 2017 that is the subject of this ruling.

Applicant's Case

6. At the hearing of the application, counsel for the applicant indicated to the court that the applicant is seeking prayers 3, 4 and 5 of the application.

7. Relying on the supporting affidavit sworn by Joseph Chege Mwaura on 20th January 2017, counsel submitted that the plaintiff is a state corporation and the registered owner of all that land known as LR.No.498/1085, situated in Eldama Ravine. That prior to the plaintiff acquiring the land, it belonged to the government of Kenya.

8. The plaintiff accuses the defendants of unlawfully encroaching upon and squatting on the land.  That the defendants have no title to the land and that they have refused to vacate despite the plaintiff's efforts to get vacant possession.

9. The plaintiff submits that the defendants’ presence on the land is a gross violation of the plaintiff's constitutional rights and property rights.  That the defendants are wasting, damaging and degrading the property by inter alia constructing permanent homes and cultivating the land.

10. The plaintiff submits that the defendants have no defence to the plaintiff's claim and urges the court to exercise discretion in its favour by entering summary judgment under order 36 rule 1 of the Civil Procedure Rules, 2010.  Such an action, the plaintiff submits, will uphold sanctity of its title.

11. Among the averments in the defence is that the defendants have continuously and without interruption occupied and lived on the land since 1973.   The plaintiff responded to this by submitting that being a state corporation, the defendants cannot claim adverse possession against it in view of the provisions of sections 41 and 42 (d) of Limitation of Actions Act.  The plaintiff described the suit land as government land or land otherwise enjoyed by the government.

12. Section 41 of the Act is headed “Exclusion of public land” and states:

This Act does not—

(a) enable a person to acquire any title to, or any easement over—

(i) Government land or land otherwise enjoyed by the Government

13. Section 42 is titled “Exclusion of certain proceedings” and provides:

This Act does not apply to—

(a)       ….

(b)       …..

(c)  an action to recover possession of Trust land; or

(d) proceedings by the Government to recover possession of Government land, or to recover any tax or duty, or the interest on any tax or duty, or any penalty for non-payment or late payment of any tax or duty, or any costs or expense in connexion with any such recovery;

14. Further, the plaintiff argues that the defendants' occupation of the land has not been peaceful.

15. Being a claim for trespass, the plaintiffs argued that every act of trespass gives rise to a new cause of action and that the claim is therefore always alive as long as trespass continues.

16. The plaintiff invited the court to note that contrary to the defendant's allegations, the defendants have not been on the land since 1973 in view of the fact that some of the defendants such as the 9th, 10th, 13th and 14th defendants were born long after 1973.

17. The plaintiff relied on the decided cases of Elijah Syekei – vs -  Benjamin Kiema – HCCC.No. 89 of 2001 (Nakuru) and James Gature Wathigo -vs – John Mwaura & another – HCCC No.259 of 2000 (Nakuru).

18. The plaintiff included by submitting that the defence filed by the defendant raises no triable issues. Consequently, the application should be allowed as prayed.

Respondent's Case

19. The respondents filed a replying affidavit sworn jointly on 1st February 2017 by Meos Mutoke Musa, Wilson Ruto Cherono, Pst. Francis Kibor and Reuben Arap Simotwo.

20. Additionally, the respondents also filed a Notice of Preliminary Objection dated 17th February 2017 stating that:

“……the suit is statute barred since over 12 years have elapsed since the cause of action accrued to the plaintiff/applicant i.e. on 10th July 2003.  REASONS whereof the defendants/applicants pray that the plaint be struck out with costs”.

21. It was agreed that the P.O be incorporated in the defendants’ response to the application.  Consequently, counsel for the respondents argued both the P.O and responded to the application simultaneously.

22. The defendants do not deny that the plaintiff is the registered proprietor of the lease compromised in the suit property.

23. Nevertheless, the defendants contend that they have a good defence to the plaintiff's claim: they argue that the suit is statute barred under the Limitation of Actions Act and that the plaintiff's title to the suit property has become extinguished by adverse possession in view of the provisions of section 7 of Limitation of Actions Act.

24. It was argued on behalf of the defendants that though the plaintiff is a state corporation, it is a separate entity from the government and that the provisions of section 42 of Limitation of Actions Act do not apply to it.

25. The defendants argued that in fact the issue as to whether the plaintiff is a part of the government for purposes of section 42 and whether the defendants have been on the land since 10th July 2003 are triable issues.  Consequently, the defendants argued, the case should be allowed to be heard on its merits so that the court can decide whether or not the defendants are entitled to the defence of limitation.

26. That the defence of limitation is not frivolous or scandalous.  That it would be unfair to enter summary judgment and to order eviction of the defendants before the suit is heard on its merits.

27. In conclusion, counsel for the defendants argued that the defence filed raises triable issues.  The defendants therefore urged the court to dismiss the application with costs.

Analysis and Determinations

28. The application is brought under Order 2 rules 15 (1) (a), (d) and sub-rule (2). It is also brought under Order 36 rule 1(1) (b) of the Civil Procedure Rules, 2010.  The prayer for summary judgment precedes the prayer for striking out. Indeed, the prayer for striking out is indicated as being in the alternative to that for summary judgment.

29. Order 36 rule 1 states:

In all suits where a plaintiff seeks judgment for—

(a)  ……

(b)  the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser, where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits

30. Order 2 rule 15 (1) (a) and (d) provides:

(1)  At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—

(a) it discloses no reasonable cause of action or defence in law; or

(b)   …..

(c)   …..

(d)   it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

31. Order 2 rule 15 (2) provides that

“No evidence shall be admissible on an application under subrule (1)(a) but the application shall state concisely the grounds on which it is made”

32. Even though Order 2 rule 15 (2) makes it clear that no evidence shall be admissible on an application brought under sub-rule (1) (a), the plaintiff herein has supported the application by an affidavit. Nevertheless, considering that the application is also bought under sub-rule (1) (d), I do not consider the inclusion of an affidavit as prejudicial to the application. In Margaret Njeri Mbugua v Kirk Mweya Nyaga [2016] eKLRthe Court of Appeal stated:

The appellant brought his application in the court under ground (a) and (b) of Order VI Rule 13(1) of the Civil Procedure Rules. Under Order VI rule 13 (2) of the Civil Procedure Rules an application under ground (a) cannot be supported by evidence. However, the appellant also brought his application under ground (b) and under that ground he could adduce evidence. There is nothing to prevent an applicant from combining his application under grounds (a) and (b) as the appellant did. We would thus overrule the contention that the application was defective because it was supported by evidence

33. The P.O seeks striking out of the plaint on the ground that the suit is barred by virtue of Limitation of Actions Act. The ingredients of a valid P.O were given by Law, JA and Sir Charles Newbold P. in MUKISA BISCUITS MANUFACTURING CO LTD VS WEST END DISTRIBUTORS(1969) EA 696 at page 700 as follows:

“…a ‘preliminary objection’ consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…..

A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

34. It is clear from the foregoing that the P.O is not a valid P.O since it seeks to rely on evidence from the defendants that 12 years have elapsed since the cause of action accrued to the plaintiff. This sort of evidence was not on record as at the time the P.O was filed but the defendants sought to introduce it by way of their replying affidavit. It does not raise a pure point of law. The P.O is therefore dismissed.

35. I must now address the question of whether a case has been made for entry of summary judgment. To succeed, the plaintiff must show that the defence raises no triable issue. Even a single triable issue is enough to warrant granting the defendant an opportunity to defend the action. A defence which raises a triable issue does not mean a defence that must succeed.

36. InDhanjal Investments Ltd vs Shabaha Inv. Ltd.Civil appeal No. 232 of 1997, (unreported) the Court of Appeal stated:

The law on summary judgment procedure has been settled for many years now. It was held as early as 1952 in the case of Kandnlal Restaurant v Devshi & Co. (1952) EACA 77and followed by the Court of appeal for Eastern African in the case of Sonza Figuerido & Co. Ltd v Mooring Hotel Limited (1952) EA 425that if the defendant shows a bona fide triable issue he must be allowed to defend without conditions

37. Applying the above test to the application, it is crucial to examine the defence on record. Even though at paragraph 4 of the defence the defendants have denied the plaintiff's ownership of the suit plot, the ownership has in fact been admitted in submissions by counsel and in the replying affidavit.

38. Material paragraphs of the defendants' statement of defence read as follows:

6. The defendants aver that they by themselves and their families have occupied and lived on the suit the year 1973 and thus long before the plaintiff was awarded title thereto in the year 1992.

7. The defendants aver that they have continuously lived on the piece of land uninterrupted which fact the government of Kenya.  Ministry of Lands and the Provincial Administration is fully aware of.

39. The defendants also filed an application on 20th February 2017 seeking leave to amend the defence so as to plead the defence of limitation and to specifically plead that the plaintiff's title has been extinguished through adverse possession by the defendants.  The application is yet to be fixed for hearing.

40. I remind myself however that Order 36 rule 2 provides:

The defendant may show either by affidavit, or by oral evidence, or otherwise that he should have leave to defend the suit

41. I cannot therefore disregard the fact that through the pending application the defendants have manifested an intention to amend the defence so as to plead the defence of limitation. Whether such a defence will succeed at the hearing is a matter that I am not supposed to decide now. For now, I am satisfied that there is a triable issue as to whether the defence of limitation is available to the defendants and whether the defendants can establish that the plaintiff's title has been extinguished through adverse possession. These claims may be decided either way upon hearing of the case on its merits. Still, I reiterate that a triable issue need not be an issue that must succeed at the trial. I therefore cannot enter summary judgment in the circumstances.

42. The prayer for striking out of the defence is made on the premise that the defence discloses no reasonable cause of action or reasonable defence in law and that it is otherwise an abuse of the process of the court.

43. I caution myself that in an application for striking out I ought not to embark on the merits of the case as that may prejudice the trial of the case. In  Delphis Bank Limited v Caneland Limited [2014] eKLR, the Court of Appeal stated:

“The leading local case on interpretation of Rule 13 of Order VI of the Civil Procedure Rules on which the application for striking out the defences was based is perhapsD.T. Dobie & company (Kenya) Ltd vs Muchina …….. In the case, Madan JA, as he then was, opined in an obiter dictum that;

‘The power to strike out should be exercised only after the court has considered all the facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial judge. On an application to strike out pleadings, no opinions should be expressed as this would prejudice the fair trial and would restrict the freedom of the trial judge in disposing the case.’

44.  I have reproduced above key averments in the defence and I have noted that there is a pending application for leave to amend the defence so as to plead limitation. In D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another[1980] eKLR Madan JA further opined:

No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.

45. The parties have addressed the court at length as to whether the plaintiff’s ownership of the land amounts the land being government land or land enjoyed by the government and whether in such circumstances a claim for adverse possession has a chance. I consider that it is unnecessary and improper at this stage to determine these issues as that would amount to embarking on the merits of the case.

46. Looking at the material placed before me in totality, I am not persuaded that this is a fit and proper case to grant striking out of the defence. The suit should be heard on the merits.

Conclusion

47. In conclusion, both the application dated 20th January 2017 and the Preliminary Objection dated 17th February 2017 are dismissed. Costs shall be in the cause.

48. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 16th day of March,2017.

D. O. OHUNGO

JUDGE

In the presence of:

No appearance for the plaintiff/applicant

Mr. Tengekyon for the defendants/respondents

Court Assistant: Gichaba