Johnson Nkonge O. M’rucha v John Phares Njeru M’ithaara & Abdul Rashid Mbae Magambo [2017] KEELC 1083 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC CASE NO 108 OF 2017

FORMRLY MERU ELC CASE NO. 12 OF 2009

JOHNSON NKONGE O. M’RUCHA…………………………..…….PLAINTIFF

VERSUS

JOHN PHARES NJERU M’ITHAARA……..…DEFENDANT/RESPONDENT

ABDUL RASHID MBAE MAGAMBO….INTERESTED PARTY/APPLICANT

RULING

1. The applicant/interested Party herein filed an application dated 14th February, 2014. The application seeks the following orders:

1. THAT this application be certified as urgent in the first instance and service be dispensed with and the application be heard ex-parte.

2. THAT the Defendant/Respondent be restrained by way of a temporary injunction by himself, his duly authorized agent and / or servants from in any other manner however interfering with all that parcel of land known as MWIMBI/S. MUGUMANGO/1419 (suit land), ownership, physical possession and/or quiet enjoyment of the Interested  Party / Applicant’s Suitland, pending the hearing and final determination of this application and / or any further orders and / or direction of this Honourable Court.

3. THAT the Defendant/Respondent be restrained by way of a temporary injunction by himself, his duly authorized agent and / or servants from taking possession, erecting structures, developing, constructing permanent buildings and / or in any other manner however interfering with all that parcel of land known as MWIMBI/S. MUGUMANGO/1419 (suit land), ownership, physical possession and / or quiet enjoyment of the Interested Party/ applicant’s suit land, pending the hearing and determination of this suit.

4. THAT the Defendant/Respondent by the (sic) himself, his duly authorized agent and / or servants be compelled by an order of mandatory injunction to remove and / or demolish all and any structures, constructions, buildings, developments, and / or materials they have erected, constructed, deposited and / or caused to be erected, constructed, deposited on all that parcel of land known as MWIMBI/MUGUMANGO/1419 (suit land).

5. THAT this Honourable Court be pleased to issue an order of Eviction against the Defendant/Respondent compelling him to render and / or surrender to the applicant vacant possession of all that parcel of land known as MWIMBI/S. MUGUMANGO/1419.

6. THAT the Defendant/Respondent be condemned to bear the costs of this application.

2. The application is supported by the affidavit of ABDUL RASHID MABE MAGAMBO and has the following grounds:

(a) The Applicant is the Plaintiff in MERU CMCC NO. 8 OF 2010 which is consolidated with the file herein.

(b) The Interested Party/Applicant is the lawful owner of all that parcel of land known as MWIMBI/S.MUGUMANGO/1419 having legally purchased the suit land from the previous owner one JOHNSON NKONGE M’RUCHA in the year 2008.

(c) The Defendant/Respondent herein together with the 1st defendant in MERU CMCC NO. 8 OF 2010 on 24. 4.2009 unlawfully, surreptitiously, without any legal justification and actuated by malice caused the suit land to be registered in the 2nd defendant’s name in the aforesaid suit despite the Interested Party/Applicant being the registered owner and in occupation without affording him the right to be heard.

(d) The matter has been in court vide several civil suits since the year 2009 which were consolidated in this suit.

(e)  The defendant/respondent is now using hooligans and goons and have taken the suit land over by force.

(f) The defendant /respondent have (sic) unlawfully entered into the suit land and built, started building, developing, erected and / or caused to be built buildings, erected structures thereby impending possession and development by the interested party / Applicant.

(g)  The Applicant will suffer irreparable loss unless the Respondent is restrained by way of temporary injunction.

(h) The intervention of this Honourable Court is necessary so that the suit land and the interested party’s / Applicant’s property can be preserved until the court is able to hear and dispose of this matter.

3. Prayer 2 was, on 16th February, 2016, granted at the ex-parte stage.

4. The Defendant, John Phares Njeru M’Ithara has opposed the application through his replying affidavit sworn on 6th March, 2016 and filed in court the same day. It states as follows:

“I, JOHN PHARES NJERU M’ITHAARA of P. O. Box 27, Chogoria within the Republic of Kenya do hereby make oath and state as follows:

1. THAT I am the Defendant herein and competent to make and swear this Affidavit being well conversant with the facts and circumstances of this case as consolidated namely (MERU – HCCC 12/09 and MERU CMCC 8/2010).

2. THAT I have been represebted in this suit by M/S T.O K’Opere & Co. Advocates since 2010 pursuant to the Notice of Appointment of Advocates dated 07/12/2010 and filed in court on 16/12/2010 in MERU – HCCC 12/09 and also in MERU –CMCC 8/10 and filed in court on 16/12/2010 in MERU – HCCC 12/09 and also in MERU – CMCC 8/10 wherein my said Advocates came on record on 8th February, 2010 and opposed the injunction application dated 14/01/2010.

3. THAT I was shocked when I was served with an application dated 14. 2.2017 together with an order obtained Ex-parte on 16. 2.2017 by the advocates for the  applicants (Maitai Rimita & Co.) who are well aware that I am represented by M/s T.O. K’Opere & Co. Advocates and I personally came to court on 22. 02. 2017 when I indicated the said position to the court and the matter was adjourned to 13. 03. 2017 and I subsequently travelled to Nairobi and gave the application and order to my advocates who informed me that they had not been served with the same by the applicant’s advocates whom they have been in communication with since the year 2014 when the firm of Maitai Rimita & Co. came on record herein vide a Notice of Change of Advocates dated 09. 01. 2014 and filed in court on 10. 01. 2014.

4. THAT my advocate (MR. K’Opere) has taken me through the application and supporting affidavit which I have understood and I wish to respond thereto as follows.

5. THAT I wish to adopt the grounds set out in the Notice of Preliminary Objection by my Advocates and add that I transferred the suit property to one Justus Muruja Musa on 24. 04. 2009 pursuant to an earlier transfer by a court order on 08. 02. 2009 in CHUKA SRM – LDT 23/07and Justus Muruja Musa was issued with Title Deed on 09. 09. 2009 whereupon the applicant filed an application for injunction and orders for status quo on 14. 1.2010 which was refused by the court on 01. 04. 2010 and my advocates have been in communication with the applicant’s advocates since 2014 and even exchanged pleadings.  Attached and marked “JPNM 1 – 7” are copies of the title deed, court order of 01. 04. 2010 and letters exchanged confirming that the matter as consolidated by the high court on 22. 03. 2011 has been going on until the court certified the same ready for hearing on 16. 5.2016.

6. THAT I am therefore advised by my advocate which advice I verily believe to be true that the applicant’s application for injunction herein dated 14. 01. 2010 having been determined on 01. 04. 2010, he cannot file another similar application and since I am not the registered owner of the suit property, an injunction cannot be issued against me as sought.

7. THAT I oppose the application dated 14. 02. 2017 and filed in court on 16. 02. 2017 and pray that the orders given herein Ex-parte be discharged immediately, and the case be listed for hearing on its full merits as directed on 16. 05. 2016.

8. THAT I swear this affidavit conscientiously (sic) the facts deponed to herein being true and within my knowledge and information.

5. The defendant’s advocates, T.O.K’Opere & Co. Advocates filed a Notice of Preliminary Objection on 8th March, 2017 which is dated 6th March, 2017. It states as follows:

1. This suit arose from CHUKA – PMCC 77 OF 2009 which was Transferred to the Chief Magistrate’s Court in Meru and re-numbered MERU – CMCC 8 OF 2010 and consequently transferred to Meru High Court and Consolidated with MERU – HCCC 12 OF 2009 by a Ruling of the Hon. Lady Justice J. Lesiit given on 22. 03. 2011 and has now been transferred to CHUKA – HIGH COURT – ELC No. 108 OF 2017.

2. There was a previous injunction application by the interested party applicant ABDUL RASHI MBAE MAGAMBO dated 14. 01. 2010 who is the plaintiff in MERU CMCC 8/2010 which application was duly heard by the then SPM – Hon. K.W. Kiarie (now Judge) on 19. 03. 2010 and a ruling and order given on 01. 04. 2010 allowing amendment of the plaint and refusing an order for injunction and status quo on the basis that the suit property Title No. MWIMBI/S.MUGUMANGO/1419 had already been sold and transferred by the defendant JOHN PHARES NJERU M’Ithaara to JUSTUS MURUJA MUSA on 24. 08. 2009 and title deed issued on 08. 09. 2009 and consequently no order of injunction could be issued against the defendant who was no longer the owner of the property.

3. The present application by the same interested party ABDUL RASHID MBAE MAGAMBO in these proceedings now describing himself as an interested party whereas he is the plaintiff in MERU – CMCC 8/2010 which was consolidated into MERU-HCCC 12/2009 and now CHUKA H.C ELC 108/2017 is therefore RES JUDICATA.

4. As previously held by the court, the orders of injunction cannot issue against the defendant herein as he is not the registered owner of the suit property and the present application and the ex-parte orders given on 16. 02. 2017 should therefore be dismissed and vacated EX-DEBITO JUSTITIAE.

5. Directions for the hearing of this suit as consolidated with all the parties had already been given on 15. 05. 2016 and the matter was certified ready for hearing and parties ordered to take a hearing date in the registry after all pre-trial motions had been determined and parties have already filed their respective documents and witness statements and the present application is therefore an abuse of the court process and should be dismissed with costs so that the case can proceed for full hearing.

6. The applicant’s advocates have failed neglected and/ or refused to serve the application dated 14. 02. 2017 upon the defendant’s advocates on record since the application was filed on 16. 02. 2017 together with the ex-parte orders granted despite the matter having come to court on 22. 02. 2017 and now fixed for hearing on 13. 03. 2017 only opting to serve the defendant directly which amounts to an abuse of the court process.

6. The applicant in his submissions, by and large, restates what is contained in the Preliminary Objection and in his replying affidavit sworn on 6th March, 2017.  A conspectus of his submissions is that an application for injunction dated 14th January, 2010 was filed by the applicant/plaintiff and was determined on the 1st of April, 2010. He disputes the plaintiffs assertion that this court, being a specialized court, has special jurisdiction that can allow it to re-hear an application similar to the one determined by the court of the same horizontal and concurrent jurisdiction.

7. The applicant says that the actions complained about occurred this year and, cannot, therefore be party to earlier decisions. In submissions dated 27th July, 2017 and filed on 24th August, 2017, the plaintiff’s advocate who is also the interested party’s advocate, tells the court that the plaintiff adopts the submissions already filed by the interested party.

8. In his submissions dated 15th March, 2017, he asserts that this court is a special court meant to deal with exceptional circumstances such as those that happened in this case. He asserts that section 18 and 19 of the Environment and Land Court brings out clearly that this court is not like any other court. He opines that it cannot allow people who have decided to take arms and take the law into their own hands to do so. He further says that the Preliminary Objection filed by the plaintiff does not consider this court as a special court. He urges the court to dismiss the Preliminary Objection and allow his application dated 14th February, 2017.

9. I have considered the pleadings filed by the parties in support of their diametrically opposed assertions. I do note that it is not disputed that an application seeking similar orders to those sought in the plaintiff’s application dated 14th February, 2017 was determined on 1st April, 2010 about seven and a half years ago. I also do note that as at 1st April, 2010, the land had changed ownership to one Justus Muruja Musa which transfer had been recorded in the green card on 8th September, 2009, who is not a party in this case.

10. I do not agree that this court has special jurisdiction to rehear matters heard and determined by a Judge of similar horizonal and concurrent jurisdiction. I disagree. Jurisdiction cannot be contrived or presumed. The Supreme Court of Kenya in Civil Application No. 2 of 2012 (S. K. Macharia & Another Versus KCB & 2 Others) eruditely gave guidance in the area of jurisdiction. It states as follows: “A court’s jurisdiction flows from either the constitution or legislation or both.  Thus a court of law can only exercise jurisdiction as conferred by the Constitution or other written law.  It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the 1st and 2nd respondents in his submissions that the issues as to whether a court of law had jurisdiction to entertain a matter before it, is not one of procedural technicality; it goes to the very heart of the matter, without jurisdiction, the court cannot entertain any proceedings.”

11.  I find that I have no jurisdiction to re-open a matter heard and determined by a Judge who has horizontal and concurrent jurisdiction similar to the one I possess.

12. In the circumstances, the defendant/respondent’s Notice of Preliminary Objection dated 6th March, 2017 is upheld.

13. As a result the plaintiff’s application dated 14th February, 2017 is dismissed and any orders granted therein are vacated forthwith.

14. Costs shall be in the cause.

15.  It is so ordered.

Delivered in open court at Chuka this 7th day of November, 2017 in the presence of:

CA: Ndegwa

Murimi Murango h/b Rimita for Applicant

Mutani h/b K’Opera for the defendant

P.M. NJOROGE

JUDGE