Munywoki Musuva Ngao v Mutua Mbinda & Jackson M. Mbindo [2019] KEELC 4740 (KLR)

REPUBLIC  OF KENYA

IN THE ENVIRONMENT  AND LAND COURT AT MAKUENI

ELC NO. 1 OF 2018

MUNYWOKI MUSUVA NGAO...................................... PLAINTIFF

VERSUS

MUTUA MBINDA ................................................ 1ST DEFENDANT

JACKSON M.  MBINDO..................................... 2ND DEFNEDANT

RULING

1) This ruling  is in respect of the notice of preliminary  objection dated 17th August, 2018 and filed  in court on 27th August, 2018.

2) The grounds raised  in the preliminary objection are:-

1. The entire  suit as filed is defective and bad in law.

2. The verifying  affidavit to the plaint borders on perjury.

3. The Defendants are non-suited as they are not registered as owners of any  land  that  borders Okia/Kilala/661 or any other  land.

4. The suit   as it is, is unmeritorious as the thresh hold  to grant the prayers sought cannot be met.

5. The suit  as filed is premature non-starter and if  anything  is an abuse of the court process.

3) On the 4th October, 2018 the court   directed that the preliminary objection be disposed off by way of written submissions.

4) The submissions by the 1st and the 2nd Defendants  were as follows;

The entire suit is defective  and bad in law

5) That the real dispute between the Plaintiff and the Defendants is boundary on the ground in that the actual boundary between Okia/Kilala/661 and Okia/Kilala/714 was and is not clearly defined hence claims of encroachment cannot arise.

6) The counsel  was of the view that the only cure for the dispute is to comply with the Provisions of Sections 18 and 19 of the Land Registration Act  No. 3 of 2012 and added that since  the Plaintiff has not acted as required by the two sections, this suit is rendered to be defective  and bad in law.

The verifying  affidavit

7) That under the Oaths and Statutory Declarations Act, if one were to swear to false hoods, it  would  amount to a criminal  offence of perjury.  The counsel pointed out that in paragraph 4 of the verifying affidavit, the Plaintiff has sworn that;

“there are no pending or previous court proceedings  between myself and the Defendants touching on the subject issue as contained herein.”

The counsel submitted  that in document number 3 of the Plaintiff’s list of documents, there  is a document  headed  “Report on  boundary dispute plot No. Okia/Kilala/661” and Okia/Kilala/714. The counsel pointed out that the document is from the Ministry of Lands and Physical Planning – County Surveyor -Makueni and that it is   addressed   to the Principal Magistrate Makueni. The counsel  was of the view that its  import is that there is another case/dispute which was before  the Principal Magistrate where orders were made for the County  Surveyor  to determine the boundary of the aforementioned land parcels. He submitted that if this is true, then the verifying affidavit is vitiated having  been  sworn on an untrue position in respect of paragraph 4 thereof and this would attract the offence of perjury.

8) It was also submitted   that document number  3 is suspect as the  case number under which the said report was  ordered  has not been indicated.  That this may call for further investigations for reasons that the document may have been prepared with a view to hoodwink the court given the position of the Defendants is that no such visit by the County Surveyor is within their knowledge.

9) It was submitted that if the contents of document number 3 were to be believed, then it is not in doubt  that the dispute herein is the ground boundary  between land parcel number Okia/Kilala/661 and land  parcel number Okia/Kilala/714.  The counsel added that  the latter parcel is registered in the name of Paul Mbinda  Musyoki who is  deceased  and as such,  the Defendants are non suited  since the orders to be given by the court will affect the latter parcel of land that belongs to  a  deceased person. The counsel correctly pointed out court orders cannot be made in vain and more so for or against a deceased person.  The counsel further submitted that if the Plaintiff has any claim against the Defendants, then he should follow the laid down provisions of the law.

Suit  is unmeritorious, premature and abuse of court process

10)  The counsel submitted that the dispute herein being a boundary dispute, the Plaintiff has contravened the law and the entire suit must fail as it is without merit.  The counsel added that the suit is also pre-mature and an abuse  of the court process as the Defendants are non suited parties since the Plaintiff  seeks orders which in the event of being granted,  they cannot  be enforced against the land of a deceased person.

11)  On the other hand, the Plaintiff’s counsel  cited the case of AKN V JNM (2014) eKLR where W.Musyoka, J. cited the case of Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd [1969] EA 696 which defines  what  a preliminary objection is. In the Mukisa case, preliminary objection is defined as;

“so far as I’m  aware, a preliminary objection consists of points of law which has been pleaded, or which arises from the clear implication out of the pleadings, and  which if argued as a preliminary point may dispose off the suit. Examples are an objection to jurisdiction of the court, or limitation, a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”

12)   Arising  from the  above, the Plaintiff’s  counsel  submitted that  the issues being raised  by the preliminary objection are of the nature that would require  calling of evidence as they  raise  questions  of fact and law.  The counsel cited such questions fact as follows; whether the Defendants have encroached onto the Plaintiff’s land, whether  there was previous dispute and whether  the letter of the surveyor amounts to previous  proceedings since the Defendants have contested it.  The counsel was also of the view that the issue of whether the Defendants should be sued is to be determined since they are the ones who have trespassed onto  the Plaintiff’s land and termed the preliminary objection as not  sustainable.

13)  Having read the preliminary objection and   submissions that were filed, it is clear to me that point of a preliminary objection arises by clear implication out of the pleadings herein.  Firstly, document number 3 in the Plaintiff’s list of documents as well as the defence clearly show that this is a boundary dispute.  Under Section 18 of the Land Registration Act No. 3 of 2012, it is provided as  follows;

18. (1) Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed   plan shall be deemed to indicate the  approximate  boundaries  and  the approximate situation only of the parcel.

(2) the court  shall not entertain any action or other proceedings relating to a dispute as to the boundaries  of registered land unless  the boundaries  have been determined in accordance with this  section.

(3) Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may in any proceedings concerning the parcel, receive such evidence as to its  boundaries and situation as may be necessary;

Provided that where all the boundaries are defined under section 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act.

14)   My reading  of Section18(2) of the Act is that  the same is couched in mandatory terms and, therefore,  this court cannot entertain  this action relating to a dispute  touching on  to the boundaries of land parcel number Okia/Kilala/661 and Okia /Kilala/714 unless the boundaries  have been determined in accordance with the said  section.

15)  Secondly the presence of document number 3 in the  Plaintiff’s list of documents  presupposes that there  was a previous suit case concerning the parties  herein in view the fact that  the letter is addressed  to the Principal Magistrate Makueni.  This was in the year 2017 before this suit was instituted. This would  contradict  paragraph  4 of the Plaintiff’s verifying affidavit where the  Plaintiff has deposed  that there are no pending or previous proceedings between himself and the Defendants touching on the subject  issues  as contained  in the plaint.

16)  Thirdly as was submitted by the Defendants’ counsel, land  parcel number Okia/Kilala/714 is registered in the name  of a deceased person. In order for  the Plaintiff to be able to sue the Defendants he has  to follow  the provisions of  the law so as to move against  them in their capacity as  as legal representatives of the estate of the deceased. As the matter now stands, I am in agreement with the Defendants’ counsel that the Defendants are non-suited parties herein since the orders that the Plaintiff seeks will affect the land of a deceased person thus rendering   the orders  to be  issued  to be  in vain.

17)  The upshot of the foregoing is that the preliminary objection has merits and I hereby proceed to struck out the Plaintiff’s suit with costs to the Defendants.

SIGNED, DATED AND DELIVERED AT  MAKUENI THIS 7TH DAY OF FEBRUARY, 2019.

MBOGO C.G,

JUDGE

IN THE PRESENCE OF;

Mr. Mutune  for  Mr.  Munyasia  for  the  Defendants.

No appearance   for the Plaintiff

Ms Nzioka Court Assistant.

Mbogo  C.G, Judge

7/2/2019