NATIONAL SOCIAL SECURITY FUND BOARD AND TRUSTEES v ELIJAH ONGERI & 6 OTHERS [2004] KEHC 85 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Suit 899 of 2003

NATIONAL SOCIAL SECURITY FUND

BOARD AND TRUSTEES.....................................................PLAINTIFF/RESPONDENT

VERSUS

ELIJAH ONGERI

ALIO MATOGO

FRANCIS OSORO

ZACHARIA MARITA ADEI

KEN BARAZA

JOHN OYIER

ALIANA MOHAMED (Sued on their behalf and on behalf of

all persons illegally occupying L.R.No.209/12340 and

L.R. No. 209/12341 ................................................................................ DEFENDANTS

RULING

1. The Plaintiff/Applicant seeks that the Defence filed by the 3rdand 4th Defendants in this suit be struck out and judgment enteredfor the Plaintiff as prayed in the Plaint.

2. The Applicant under Order VI Rule 13(1) (b) (c) and (d) of theCivil Procedure Rules is predicated upon grounds that the Defenceis a general demur and discloses no issue of fact or law which canafford a prima facie or competent defence to the Plaintiff’s claim.The sole legal issue argued before me in support of this contentionis that the Defendants have neither a contractual or statutoryproprietary interest in the suit land. As trespassers therefore, theyhave no color of right that can form the basis for their continuedillegal occupation of the Plaintiff's land.

3.   I am alive to the statement by Justice Madan L.A. (as he then was) in D.T. Dobie & Co. (K) Ltd. vs. Muchina& Another (1978) LLR a CAKwhere he said: -

"No suit ought to be summarilydismissed unless it appears so hopelessthat it plainly and obviously discloses noreasonable cause of action, and is so weakas to be beyond redemption and incurableby amendment; The court ought to act verycautiously and carefully consider all factsof the case without embarking upon a trialthereof, before dismissing a case fordisclosing no reasonable cause of action orbeing otherwise an abuse of the person ofthe court."

4. I am also aware that in KundanlalRestaurant vs. Devshi &

Co. {1992} EACAthe court at page 80 thereof held as follows: -

"It is desirable and important that thetime of conditions and of courts should notbe wasted by the investigations of bogusdefence. There is one important matterbut it is a matter of adjectival law onlyembodied in the Rules of court and cannotbe allowed to prevail the fundamentalprinciple of justice that a defendant whohas a stateable and arguable defence mustbe given the opportunity to state it andargue it before the court. All theDefendant was to show is that there is adefinite triable issue of Law".

5. The caution that I shall exercise in this matter is along the lines that were  expressed in Nitin Properties Ltd.  vs.  Jugojir Singh Kala and Kaldeep Kaus Kalai Civil Appl.  No.  132 of 1998when the Court of Appeal stated that: -

"Striking out is a drastic remedy andit has been held time and time again thatstriking out procedure can be invoked onlyin plain and obvious cases and that such Jurisdiction must be exercised withextreme caution."

6.     And so with this background and having warned myself of thedangers of hastily striking out a pleading I shall now look to themerits or demerits of the parties' contentions as laid before me.

7.     The Defendants say that they have a triable issue, which isthat whereas the Plaintiff has title to the suit land, they (the 3rd and4th Defendants and all those sued with them) have a possessoryright to the suit premises which I gather is supposed to override thePlaintiffs title.

8.     I have looked at the Defence dated 10th November 2003 by 3rdand 4th Defendants. It has a number of general denials of specificparagraphs of the Plaint. In my view only paragraphs 4 and 5 havesubstantive denials or defences and they read as follows: -

Paragraph 4 -

"Paragraphs 3, 4 and5 of the Plaintare denied in toto. The 3rd and 4th namedDefendants  state  that  they  entered  and settled at the suit premises on or about1974 and 1977 respectively and have since constructed their houses at the saidpremises and continue to live there astheir place or residence and abode. The 3rd and 4th named Defendants in particulardeny that they entered the suit premises inthe year 2003 as stated in paragraph 5 of the Plaint."

Paragraph 5 -

"The 3rd and 4th named Defendantsstate that the Plaintiff was not inpossession of the suit premises at the timethey entered and settled thereon andfurther state that the Plaintiff has never infact taken possession of the suit premisesat any time or at all".

9. The issues raised here are that the Defendants entered thesuit land in 1974 and 1977 respectively and live there and havepossession while the Plaintiff has never taken possession.

10. The Plaint dated 26th August 2003 and filed the next day prays for declaration that: -

i) The Defendants occupation of thePlaintiff's land is an act of trespass; thusthe Plaintiff has a right to recoverpossession of the same.

ii) An order directing the Defendants to giveup their illegal occupation of landimmediately and leave the subject land; indefault of which the plaintiff be at libertyto evict them using all lawful force asmight be necessary.

11.      The basis as I said earlier for seeking these orders is that thePlaintiff is the registered proprietor of the land parcels known asL.R. No. 12340 and L. R. No. 209/12341 now occupied by the 3rdand 4th Defendants. I am asked by counsel for the Plaintiff to lookat Section 23 of the Registration of Titles Act, Cap 281 and find thatthe Plaintiffs title is indefeasible and cannot be challenged, least ofall by trespassers such as the 3rd and 4th Defendants and theirconfederates.

12.  Section 23 of the Act provides as follows: -

"The certificate of title issued upontransfer or transmission by the proprietorthereof shall be taken by all courts asconclusive evidence that the person namedtherein as proprietor of land is theabsolute and indefeasible owner thereforesubject to the encumbrances, easements,restrictions and conditions containedtherein or endorsed thereon, and the titleof that proprietor shall not be subjected tochallenge, except on the ground of fraud ormisrepresentation to which he is proved tobe a party."

13.    I shall juxtapose this submission with the one by theDefendant's counsel that his clients have a possessory right overthe suit land.

14.    A possessory interest has been defined in the OxfordDictionary Law 2002 edition to mean "ownership of land that canonly be proved by evidence of the requisite period of adversepossession or possession coupled with a defectivedocumentary title.  A proprietor of registered land having only possessory title is not protected against any adverse estate,interest or right, or right subsisting or capable of arising upto the time when the title was first registered."

15.    In the instant the 3rd and 4th Defendants seem to be leaning,without much saying so towards a defence that they are owners ofthe suit land by possession. The land in question was firstregistered on 12th January 1995 and the proprietor was M/SSharjah Trading Company Limited whose title was then transferredto the Plaintiff on 26th May 1995.

16.    No fraud or misrepresentation on either Mr. Sharjah TradingCo. Ltd. is alleged in the Defence as envisaged by Section 23aforesaid. It follows therefore, that the weak possessory right,which in any event has not been pleaded, is far subordinate if at allto the Plaintiffs title which is indefeasible and "cannot bechallenged".

17.    The upshot of all these things is that there is really no Defenceto the suit.  The same cannot be cured by amendment since ab initiothe Defendant's have no identifiable interest in law asregards the suit property.

18. Often times this court is faced with the problem of laymenclaiming ownership through political rather than legal means. It isnot enough to say as the Defendants are saying here that theProvincial Administration, the Member of Parliament, or even the"Government of Kenya"has "always been aware of andrecognized the hundreds of persons who have settled at thesuit premises".(Paragraph 12 of the Affidavit of Zacharia MantaAdei sworn on 10. 12. 2003). Neither is it enough to say as FrancisOsorio says that the "Plaintiff has never taken or obtainedvacant possession of the suit premises"and "cannot seek toevict the occupants of the alleged trespass"(Replying Affidavitsworn on 18th February 2004). The "awareness", "recognition"and "occupation"must be backed by law and not such niceties asare the preserve of politicians and not the law. In the instant case,the Defendants are on very shaky grounds, as even with allsympathy that this court can master, they have no Defence to the suit.

19.    In the circumstances, I shall grant the prayers sought by thePlaintiff/Applicant in its application dated 9th February 2004 withcosts.

20.    I must say something about my orders of 5th February 2004because I heard from counsel for the Defendants what I considereda misrepresentation of that order. I would on my own motionclarify the impact of that order, which is this; that I only set asidejudgment as against the 3rd and 4th Defendants. The otherDefendants both named and unnamed have not come to seek suchsetting aside and judgment against them still stands, unless thiscourt makes other or further orders with regard thereto.

Orders accordingly.

Dated and delivered at Nairobi this 16th day of March 2004.

I. LENAOLA

Ag. JUDGE

16. 3.2004

Ruling read in the presence of:Mr.Nguru for the RespondentMr. Kajwang  for the Applicant

I. LENAOLA

Ag. JUDGE

16. 3.2004