Joyce Chepkemoi Nge’no v Erick D K Ngetich, Josephine Sigei & Peter Rono [2014] KEHC 3385 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL SUIT NO. 227  OF 2012

JOYCE CHEPKEMOI NGE’NO…..................... PLAINTIFF

VERSUS

ERICK D K NGETICH .…………….……… 1STDEFENDANT

JOSEPHINE  SIGEI……………..……………2ND DEFENDANT

PETER  RONO………………………………..3RD  DEFENDANT

COUNTERCLAIM

ERICK D K NGETICH .……….…………… 1ST PLAINTIFF

JOSEPHINE  SIGEI……………..……………2ND PLAINTIFF

PETER  RONO………………………………..3RD  PLAINTIFF

VERSUS

JOYCE CHEPKEMOI NGE’NO…..............1ST DEFENDANT

SAMUEL KIPKORIR A. NGE'NO…………..2ND DEFENDANT

RULING

1. Before me is a Chamber Summons application filed under Order 2 Rule 15 (1) a, b, cand d of the Civil Procedure Rules by the 2nd defendant in the counter claim for determination dated 24th May, 2013. The application is opposed.

2. In a nutshell, the application seeks that this suit be struck out with costs, the 1st 2nd and 3rd defendants plaintiffs in the counterclaim, (hereafter referred to as plaintiffs/respondents) do pursue the 2nd applicant for a refund of monies paid to him and the plaintiffs/ respondents do vacate Nakuru/Olenguruone/Amaro/503 and Nakuru/ Olenguruone/Amalo/512(''suit parcels'')

3. The Application is premised on the grounds on the face of the application and the affidavit of Samuel Kipkorir A. Ngeno, the 2nd defendant in the counterclaim (hereafter referred to as the 2nd defendant/ applicant) sworn on 24th May, 2013 as follows;

i)      The sale herein is void and cannot be enforced in view of the express provisions of the Land Control Act

ii)     Consent from the area Land Control Board having not been obtained, the only available remedy is a refund of purchase price as a civil debt

iii)     The continued occupation of the land is now criminal in view of the said Act

4. The application is opposed through the following grounds of opposition filed by the plaintiffs/ respondents  as follows;

1.     That the application is misconceived, highly precipitate and the same ought to be dismissed with costs.

2.     That striking  out  is a drastic remedy which must  be exercised with  caution and  only in the  clearest or circumstances of  which  this  is not  one of them for the following reasons:-

i)      That  the  defendants claim in the counter  claim  that they duly purchased  the  various  suit  properties  from the  applicants  and  that the  contracts  were partly performed is a valid cause  of action against the  applicants.

ii)     That  the  prayers  as sought ought to be  ventilated in court because even the  applicants in this application have  admitted to transactions  of sale  of  land  between the 2nd applicant and the  respondents.

3. That in any case the applicants are not certain

on the  provisions  of the  law they have  brought the application and they are on a fishing  expedition since one  cannot bring  an  application  under  Order  2  Rule 15 (i) (a)  and  at the  same  time  purport to adduce  evidence  or even rely on the other   paragraphs  of  sub rule 1.

4.  That   the  application is brought  Mala  fide  as the  applicants’ are  blatantly asking  the court to assist  them in not performing the obligations they  committed themselves to.  The  applicants  should    therefore appreciate  the  fact that  courts don’t  aid  in the  perpetuation of  illegality but are there to  promote  good  public  policies  as  was  held  in the case  of  N.B.K Vs Wilson Ndolo Ayah.

5. That  it is the applicants  fault that the consent from the  Land  Control  Board  was not  obtained  and thus the 2nd  applicant  should  not rely on the lack of consent and purport to claim that the  contract  should be  voided.  In any case the period to obtain a consent can be extended and a sale agreement cannot be voided on the lack  of  consent  from the  L.C.B

6.  That the applicant’s  application is frivolous, vexatious and  nothing  but  an  abuse  of the court  process and the same  ought to be  dismissed with  costs.

5. On 2nd December, 2013 parties agreed that the application be disposed of by way of written submissions. The plaintiff filed their submissions on 22nd January, 2014 while the respondents filed theirs on 23rd January, 2014in support of their respective contentions.

6. The applicant in his submissions reiterated what was contained in his grounds and affidavit. He submitted that consent from the Land Control board had not been sought which was mandatory under section 6 of the Land Control Act Cap 302for all Agricultural land. That the suit was a nullity and the continued occupation of the suit land by the respondents was criminal.  He relied on two cases namely;

Richard Kamiri Gachwe Kahia –vs- Edward  Kamau Ng’ang’a,  Court  of  Appeal  at  Nairobi No.16/ 2001

Grace  Wambui Wamanda – vs- Charles  Edward  Njoroge,  Court of Appeal at  Nakuru No.126 of 1999.

7. The respondents equally reiterated what was contained in the grounds of opposition. In addition they submitted that striking out a suit was a drastic remedy which must be exercised with caution and only in the clearest of circumstances and that the plaintiffs/Respondent purchase of the suit land had not been denied by the 1st Defendant  and her husband. These are issues that needed to be canvassed during trial which position was reiterated in the case of D.T. Dobie& Company (Kenya) Ltd vs. Joseph Mbaria Muchina and Another (1980)eKLR

8. He stated that this application had been brought under the wrong provision of the Law because Order 2 Rule 15 was clear that in an application under the said rule no evidence shall be admissible but the application shall state concisely the grounds on which it is made. The applicant had gone on to adduce evidence by filing a supporting affidavit which stated issues of fact therein.

9. He also submitted that the court should not aid the applicant in perpetuating an illegality. He relied on the case of N.B.K  vs Wilson  Ndolo  Ayah 2009eKLR. It was his contention that the 2nd defendant had not only failed to fulfill his part of the sale agreement but was also feigning ignorance by alluding to lack of consent from the Land Control Board which is part of his obligation under the said agreement and is at the same time threatening the defendants with eviction and even criminal sanctions.

10. Finally he submitted that the applicant had not fulfilled the conditions for grant of an injunction and wondered at the 2nd defendant's proposal how it would be possible that the plaintiffs/ respondents pursue the 2nd defendant for a refund if their suit was struck out. He relied on the case of John Ayawo Oneko& 5 others v Titus  Matya Kiondo& 2  others [2013]eKLR

11. Briefly and as I understand from the pleadings and submissions, the 2nd defendant with his wife's (1st defendant) knowledge, being the owner of the suit parcel, entered into an enforceable sale agreement with the plaintiffs/ respondents to sell to them the suit parcels. The respondents paid the purchase price in full, took possession and have remained in possession. The 1st defendant has brought this suit against the plaintiffs/Respondents praying for judgment against them for a permanent injunction restraining them either by themselves, their agents, servants, and/or employees from alienating, selling, disposing off, fencing off and/or in any manner dealing with the suit parcels and a mandatory injunction compelling them to remove the structures and  fences  they have  put up.

12.  Before this application, the plaintiff in the main suit had contemporaneously with the plaint, filed an application  seeking an order of injunction against the defendants which was dismissed by Emukule J.In his usual humorous manner, he delivered a ruling on 6th December, 2012 and  expressed himself thus; '' what  the  Applicant  is trying to do, possibly with the egging of her  husband  is to  have  their  cake  and  eat it  at the same time. what they  cannot  be  allowed legally to do, is to use the  provisions  of the  Constitution of  Kenya  and  the  Land Control Act (Cap.302, Laws  of  Kenya) as  a shield and  defender for  reneging on enforceable  contracts. The court will not grant an injunction to a party who  sells a  property, receives  the full purchase  price and  having  fed  fully on the  purchase  price  belch it  out,  and  purport to  hide  behind the  Constitution and the  Land  Control  Act (Cap.302, Laws of  Kenya) and  pretend that one was unaware  of the  husband’s  transactions.  If indeed the  Applicant  was  unaware, there  would  have  been a reposte and a further affidavit in response to the  Defendant’s  detailed  Replying Affidavit. Neither   the  Constitution  of  Kenya  nor the  Land  Control  Act  are  or  were  intended  to be  instruments  of  deception or  fraud.''

13.  I wholly agree with the ruling by Emukule J. What the 2nd applicant is trying to do is to wriggle out of an enforceable sale agreement by urging the court to remove his name from these proceedings using statute as a shield. He was the main player in the transaction and cannot get off the hook as easily as he thinks. The court should be very slow in striking out a suit as observed by the court of appeal in one of the authorities relied on by the respondents, DT Dobie & Company (Kenya) Ltd V. Muchina (Supra):-

“1. The power to strike out should be exercised only after the court has considered all 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 fair trial and would restrict the freedom of the trial judge in disposing the case.

2. The court should aim at sustaining rather than terminating a suit. A suit should only be struck out if it is so weak that it is beyond redemption and incurable by amendment. As long as a suit can be injected with life by amendment, it should not be struck out.”

16. The overriding objective of this court being administration of justice, I find that striking out the suit against the 2nd Defendant will be highly prejudicial to the plaintiffs. For that reason, I dismiss the Chamber Summons dated 24th May, 2013 with costs to the plaintiffs/Respondents.

17. Before l leave this matter, I have noted that summons have not been issued for the 2nd defendant herein. Using the inherent powers of the court under order 3A of the Civil Procedure Act, I grant the plaintiffs in the counter claim  30 days to apply for summons for the 2nd defendant in the counterclaim.

Dated, signed and delivered on this 11th day of July 2014.

L N WAITHAKA

JUDGE.

PRESENT

Mr  Odundo  holding  brief  for  MS  said  for the  respondent/plaintiffs in C.C

Mr  Koima  holding  brief for  Mr  Simiyu for  the  1st defendant/Applicant

Mr  Mwangi holding  brief for  Mr  Ikua for  the  2nd  Defendant/applicant in the  C.C

Emmanuel Maelo : Court  Clerk

L N WAITHAKA

JUDGE