Nathan Kegengo Monayo v John Sorana Akama [2019] KEELC 765 (KLR) | Locus Standi | Esheria

Nathan Kegengo Monayo v John Sorana Akama [2019] KEELC 765 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT KISII

ELC NO. 189 OF 2017

NATHAN KEGENGO MONAYO……………………………APPLICANT

VERSUS

PROF. JOHN SORANA AKAMA ……...…………………RESPONDENT

R U L  I N G

1. The plaintiff filed the present suit vide a plaint dated 10th August 2017 filed in court on 28th September 2017. The plaintiff prayed for orders:-

1. That the Honourable Court orders rectification and cancellation and titles to land parcel Nyasibari/Chache/B/B/Boburia/1549 and all  resultant numbers 8015, 8016, 8017 and 018 respectively.

2.  Costs of the suit and relief the Honourable Court may deem fit and just to grant.

2. By the plaint, the plaintiff averred that he was the grandson of the late Monayo  Nyaundi and was a beneficiary who was staying  on land parcel Nyaribari Chache/B/B/Boburia /1549. The plaintiff further averred that the defendant acquired land parcel Nyaribari Chache/B/B/Boburia/8016 being a subdivision from land parcel Nyaribari Chache/B/B/Boburia/1549 fraudulently using dubious means and particularly without any succession proceedings being undertaken in regard to the estate of the late Monayo Nyaundi who was the registered owner.

3. The defendant by  a statement of defence dated 17th July  2018 filed  on 19th   July  2018 interalia  pleaded that the plaintiff’s suit was misconceived and untenable and gave notice to take a preliminary objection on the points of  law enumerated  under paragraph 10 of the defence  (i) – (ix) as hereunder :-

(i) The instant suit does not lie.

(ii) The Honourable Court is devoid and/or divested of Jurisdiction to entertain and/or adjudicate upon the subject Dispute.

(iii) The subject dispute had (sic) hitherto been heard and finally disposed of Vide KISII ELC Case No.352 of 2014, alluded to by the Plaintiff herein. Consequently, the instant Suit is Res- Judicata.

(iv) The instant suit and the incidental proceedings are barred by the provisions of Section 7 of the Civil Procedure Act, Chapter 21, Laws of Kenya.

(v) On the other hand, the instant suit is barred by the provisions of Section 34 of the Civil Procedure Act, Chapter 21, Laws of Kenya.

(vi) On the other hand, the instant suit is barred by the provisions of Section 7 of the Limitations of  Actions Act Chapter  22, Laws of Kenya.

(vii) In any event, the Plaint herein does not Disclose  any reasonable  cause of action against  the Defendant  or at all.

(viii) Besides, the instant suit amounts to and/or constitutes an abuse of the Due Process of Court.

(ix) In view of the foregoing, the plaintiff is Non-suited as against the Defendant jointly and/or severally.

4. On 29th April 2019 the Court directed that the preliminary objection be canvassed by way of written submissions.  The defendant filed his submissions on 8th, may 2019 while the plaintiff filed his submissions in reply on 3rd July 2019. The defendant in support of the preliminary objection has contended that the plaintiff’s suit is an abuse of the Court process as no nexus had been demonstrated as to how the plaintiff was a beneficiary of land parcel Nyaribari Chache/B/B/Bobaria/1549. Further the defendant has contended no evidence had been furnished to establish that Monayo Nyaundi, through whom the plaintiff claims, was the registered proprietor of land parcel Nyaribari Chache/B/B/Boburia /1549.

5. Further the defendant has submitted that the plaintiff lacks the capacity to institute the present suit as he had not taken out any letters of administration to represent the estate of the deceased. The defendant further contended  the present  suit  was res judicata  by reason  of Kisii ELC No.352 of 2014 where the Court had  already made a decision and  had issued a decree in respect  of the land parcel  Nyaribari Chache/B/B/Boburia /8016which  is also the subject  matter in the present suit.

6. The plaintiff in his response submissions stated that he had obtained grant of letters ad litem to enable him to file the instant suit on behalf of the estate of Monayo Nyaundi and maintained the present suit was properly before the Court and the Court had the jurisdiction to adjudicate the same. The plaintiff further contended the suit is not res judicata as claimed by the defendant. The plaintiff   stated he was not a party in Kisii ELC No.352 of 2014 and that at any rate the said suit did not concern land parcel Nyaribari Chache/B/B/Boburia/1549 which is the subject matter herein.

7. The plaintiff contended further the suit raises a reasonable cause of action as to whether or not the defendant acquired the suit property fraudulently. The plaintiff contends that the defendant got the suit property transferred to himself by a person who lacked the legal capacity to effect the transfer as no succession proceedings had been undertaken and hence no administrator of the deceased estate had been appointed.

8. The case of Mukisa Biscuit Manufacturing Co. Limited –Vs- WestEnd Distributors Ltd (1969) En 696 is the leading authority in the determination of what amounts to and/or constitutes a valid preliminary objection. In the case it was held that a preliminary objection consisted of pure point of Law which is pleaded, or which arose by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit  e.g an objection as to jurisdictions  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. Therefore,  where a preliminary  point of law is raised either  on the basis of disputed  facts  which would require extrinsic evidence to  be led by the parties  at the trial, or even if allowed it cannot dispose of  the whole  suit then it cannot  be disposed of as such.

9. Sir Charles Newbold, P, in the case of  Mukisa  Biscuit Co. Ltd – Vs-  WestEnd  Distributors Ltd(supra) put it succinctly:-

“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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”

10. The issue for determination in the present matter is thus whether the defendant’s Preliminary Objection satisfied the threshold for a preliminary objection as established in the Mukisa Biscuit case ( Supra). The defendant has argued that the plaintiff lacked capacity to institute the present suit as he was not the personal legal representative of the deceased person’s estate. The  plaintiff as per the filed  plaint  averred  he was instituting  the suit  on behalf  of the estate of Nyaundi Monayo ( deceased) who  he claimed was the registered owner  of land parcel Nyaribari Chache/B/B/Boruria/1549 which was allegedly irregularly  subdivided  to create land parcels 8015 to 8018. Whether or not the deceased was the registered owner of land parcel 1549 and whether the same was irregularly   subdivided would in my view be a matter of evidence at the trial. As relates to capacity to file suit,  the record shows the plaintiff was issued  an  Ad litem  grant of letters of administration for the estate of Nyaundi Monayo  (deceased) on 31st  July 2017 “ limited  for the purpose of suing  and prosecuting  cases in Court” vide  Kisii  CM’s Court Succession Cause  No.321 of 2017. The present suit  was filed  on 28th September  2017 and clearly  the plaintiff  had by then the locus  standi  to institute  the suit on behalf  of the deceased estate.

11. The  defendant further  argued the present  suit  was res judicata on account  of Kisii ELC  No.352 of 2014 which the defendant stated dealt  with and  disposed  the issue relating to land parcel  Nyaribari Chache/B/B/Boburia/8016 which  was the subject matter  in the present  suit. The plaintiff was not a party in the said earlier suit and any decree issued in the said suit may not necessarily bind him. In the present suit, the issue relates to whether or not land parcel Nyaribari Chache/B/B/Boburia /1549was owned by the deceased, and if so, whether the subsequent subdivisions thereof were fraudulent and irregular and therefore  required to be annulled. As I have observed earlier in this ruling the determination of such issue would invite evidence at the trial.

12. The provisions of Section 34 of the Civil Procedure Act Cap 21 of the Laws of Kenya which the defendant invoked to argue that the plaintiff is barred from instituting the present suit on account of the decree issued in the earlier suit, in my view is inapplicable in the present circumstances. The matters in issue in the present suit do not relate to the execution of the decree in Kisii  ELC No.352 of 2014. The instant suit raises different issues from the issues raised  in the earlier  suit.

13. The end result is that I find the defendant’s preliminarily objection to be devoid of my merit. The preliminary objection is ordered dismissed with costs to the plaintiff.

RULING  DATED AND SIGNED AT NAKURU THIS 29th DAY OF OCTOBER  2019.

J. M. MUTUNGI

JUDGE

RULING DELIVERED AT KISII THIS 7th DAY OF NOVEMBER 2019.

J M ONYANGO

JUDGE