Ndung’u & 12 others v Mwangi & 5 others [2023] KEELC 20363 (KLR)

Ndung’u & 12 others v Mwangi & 5 others (Environment and Land Appeal 31 of 2022) [2023] KEELC 20363 (KLR) (26 September 2023) (Judgment)

Neutral citation: [2023] KEELC 20363 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment and Land Appeal 31 of 2022

BM Eboso, J

September 26, 2023

Between

Fredrick Njuguna Ndung’u

1st Appellant

Peter Alex Ndirang’u

2nd Appellant

Joseph Gichoro Mwaniki

3rd Appellant

Dunstan Amukhoye Lilondo

4th Appellant

Stephen Karanja Karugu

5th Appellant

John Mwangi Mugo

6th Appellant

Joseph Ndung’U Kariuki

7th Appellant

Julius Kiragu Mwangi

8th Appellant

Richard Ruhiu Mwangi

9th Appellant

Alfred Wanjohi Mukuria

10th Appellant

George Philip Otieno

11th Appellant

Simon Igecha Thiga

12th Appellant

Daniel Omwange Mosome

13th Appellant

and

Wilson Mbugua Mwangi

1st Respondent

John Karanja Mwangi

2nd Respondent

Stephen Magacha

3rd Respondent

Joseph Njogu Kinyua

4th Respondent

Mwangi Melon (Water Melons & others)

5th Respondent

County Government of Kiambu

6th Respondent

(Being an Appeal against the Judgment of Hon C. A OTIENO – OMONDI Senior Principal Magistrate, delivered on 30/3/2022 in Ruiru Senior Principal Magistrate Court Environment and Land Case No. 6 of 2021)

Judgment

Background 1. This appeal challenges the Judgment rendered on 30/3/2022 by Hon C. A Otieno – Omondi, Senior Principal Magistrate, in Ruiru SPMC Environment & Land Case No 6 of 2021. The suit was initially instituted in the Environment and Land Court at Nairobi as Nairobi ELC Case No 1397 of 2016. It was subsequently transferred to Thika Chief Magistrate Court and registered as Thika Chief Magistrate Court MCLE Case No 8 of 2018. It was later transferred to Ruiru Senior Principal Magistrate Court and registered as Ruiru Senior Principal Magistrate Court Environment & Land Case No 6 of 2021.

2. The appellants were the plaintiffs in the trial court. They sought the following verbatim reliefs: (i) A declaration that the plaintiffs are the legal allotees or the bona fide owners of the plot formally known as D11 Githurai market now known as Ruiru Kiu Block 6/B33; (ii) An order for permanent injunction do issue restraining the defendants, their servants or agents and/or whomsoever from trespassing, entering, transferring, erecting structures and/or interfering and/or doing any other acts of waste on the suit premises formally known as D11 Githurai market now known as Ruiru Kiu Block 6/B33 whatsoever; (iii) A mandatory injunction ordering the defendants to vacate the parcel of land known as Ruiru Kiu Block 6/B33; (iv) damages for trespass; and (v) costs of the suit.

3. The six respondents were the defendants in the primary suit. The 1st to the 5th respondents were the counter-claimants in the counterclaim. The 1st to 5th respondents sought the following verbatim reliefs through their counterclaim against the appellants:(i)a declaration that the suit land occupied by the defendants, among others, is public utility land not available for alienation to private individuals for personal residential or business use;(ii)A permanent injunction do issue against the plaintiffs, their agents, employees or any person claiming interest through the plaintiffs or Bidii Self Help Group restraining them from alienating, disposing, entering, remaining on, fencing, building on the suit land occupied by the 1st to 5th defendants and others described as Plot D11 Githurai Market Ruiru Kiu Block 6/B33 or otherwise and/or evicting or in any manner whatsoever interfering with the 1st to 5th defendants occupation of the suit land; and(iii)Costs of the counterclaim. I will outline a brief background to the appeal before I dispose the key issues that fall for determination in the appeal.

4. It does emerge from the original record of the trial court, that the appellants who claimed to be members of Bidii Self Help Group alleged to have been allocated land parcel number Ruiru/Kiu Block 6/B33 [hereinafter referred to as the “suit property”] on 15/11/1999 by the former Municipal Council of Ruiru. The appellants contended that sometime in 2010, the 1st to the 5th respondents who were small scale traders illegally encroached on the suit property and illegally took possession of the land. The appellants being aggrieved filed the suit at the trial court.

5. In response to the appellants’ claim, the 1st to the 5th respondents filed a defence and a counterclaim dated 24/9/2019. The case of the 1st to the 5th respondents was that they were allocated stalls on the suit property in the 1980s and 1990s. They added that the suit property had been designated as a public market by the Local and Central Governments. They contended that the land was not available for allocation to private individuals. In the alternative, they pleaded that if the land had been lawfully allocated to the appellants, then the appellants’ claim was statute-barred because they [the 1st to 5th respondents] had been in uninterrupted occupation of the land for over 12 years.

6. The County Government of Kiambu [the 6th respondent] filed a defence dated 10/7/2017 in which it averred that the allocation of the suit property to Bidii Self Group was done in a meeting held on 15/11/1999. The 6th respondent further averred that the designation of the plot allocated to Bidii Self Group was later amended through a letter by Ruiru Town Clerk dated 25/11/2004 to read as B33 instead of Plot No. 11D adding that the change was necessitated by the re-planning of the Githurai Market.

7. Upon taking evidence and receiving submissions, the trial court rendered the impugned Judgment in which it dismissed the appellants’ suit on the grounds, inter alia, that: (i) the appellants had failed to demonstrate that they had the capacity and requisite authority to sue on behalf of Bidii Self Help Group; and (ii) the appellants had failed to establish a nexus between themselves and Bidii Self Help Group in whose name the allotment letter dated 9/3/2000 was issued.

8. Similarly, the trial court dismissed the 1st to the 5th respondents’ counterclaim on the grounds, inter alia, that: (i) there was no evidence produced to prove that the suit property was public land in line with Article 62 of the Constitution; (ii) the orders sought could not issue given that the mandate to alienate public land was a function of the National Land Commission which was not a party to the suit; and (iii) there was no evidence of ownership documents of the suit property issued to the 1st to 5th respondents by the 6th respondent. The trial court ordered parties to bear their respective costs.

Appeal 9. Aggrieved by the Judgment of the trial court, the appellants brought this appeal, advancing the following seven (7) verbatim grounds:1. That the learned magistrate erred in law and fact in failing to apply the overriding objective as set out under Section 1A of the Civil Procedure Act.2. That the learned magistrate erred in law and facts by failing to appreciate that the appellants’ rights to property had been infringed by the respondents.3. That the learned magistrate erred in law by failing to consider the merits and deserving nature of the appellants’ suit thus extinguishing their right to fair hearing. [sic]4. That the learned magistrate erred in fact and in law by failing to acknowledge that the appellants being the members of a Self-Help Group had given their authority to the 1st appellant herein to tender evidence on their behalf.5. That the learned magistrate erred in law in ruling against the weight of the evidence tendered by the appellants.6. That the learned magistrate erred in law and fact by failing to consider the appellants’ legitimate expectation to have their matter heard judiciously by ruling that the appellants’ suit was not properly before the trial court.7. That the learned magistrate erred in fact and in law by applying the wrong principles of law and in particular judicial discretion thereby arriving at a wrong decision.

10. The appellants sought the following verbatim reliefs in the memorandum of appeal:(i)the appeal be allowed;(ii)the judgment delivered on 30/3/2022 be set aside;(iii)any other and such further relief as the court may deem just and fit to grant; and(iv)costs of the appeal be borne by the respondents.

Appellant’s Submissions 11. The appeal was canvassed through written submissions dated 10/2/2023 and further written submissions dated 6/2/2023, filed by M/s Kanja & Njoroge Advocates. Counsel for the appellants identified the following as the two issues that fell for determination in the appeal:(i)Whether the suit was properly instituted in the lower court; and(ii)Whether the appellants are entitled to the prayers sought.

12. On whether the suit was properly instituted at the lower court, counsel submitted that the learned magistrate erred in fact and in law when she failed to appreciate that the appellants being members of a self-help group had given their authority to the 1st appellant to tender evidence on their behalf. Counsel added that the appellants were members of a society known as Bidii Self Help Group and that they duly authorised one Frederick Njuguna Ndungu [PW1] to plead on their behalf through an authority dated 23/1/2017 and filed in court on 25/1/2017. Counsel argued that the evidence adduced by PW1 during the hearing was tendered in his capacity as the chairman of the self-help group. Counsel further contended that in her judgement, the learned magistrate acknowledged that from the evidence presented at the hearing, the suit property was allocated to the self-help group but she failed to appreciate that there was a duly filed authority allowing PW1 to adduce evidence in his capacity as chairman of the group and on behalf of the other appellants, who were all members of the self-help group. Counsel relied on the case of Wilfred Juma Wasike & 11 Others v Ministry of Interior and Co-ordination & Another[2022]eKLR to buttress this point. Counsel added that the learned magistrate failed to apply the principle of overriding objective as set out under Section 1A of the Civil Procedure Act.

13. On whether the appellants are entitled to the prayers sought, counsel submitted that it was clear from the evidence adduced during trial that the appellants presented a formidable claim before the trial court. Counsel argued that although the 6th respondent did not participate in the trial, the pleadings filed by the 6th respondent [County Government of Kiambu] indicated that the suit property was legally allocated to the appellants in 1999. Counsel added that the conversion of the term of lease to long term lease in favour of the appellants was also ratified on 4/4/2002.

14. Counsel contended that the appellants instituted the suit in pursuit of their right to property as stipulated under Article 40 of the Constitution. Counsel argued that the learned magistrate went against the weight of evidence by dismissing the appellants’ suit. Counsel added that the appellants had a legitimate expectation that their claim would be heard based on its merits and without the court relying on technicalities of law. Counsel further argued that the trial magistrate similarly dismissed the respondent's counterclaim thereby leaving parties to the suit in the same position as though the primary claim and the counterclaim had never been filed. Counsel contended that the said decision was extremely detrimental to the appellants' collective rights as they had been denied their right to own and use property although they went through the legal process of allotment and held requisite documents obtained from the 6th respondent. Counsel urged the court to uphold the interests of justice and allow the appeal.

1st to 5th Respondents’ Submissions 15. The 1st to 5th respondents filed written submissions dated 2/6/2023 through M/s Kamunye Gichigi & Co Advocates. Counsel submitted that the appeal was fatally defective given that during the hearing at the trial court, PW1 disclosed that two plaintiffs were deceased yet no substitution proceedings were taken out. Counsel argued that the court was being asked to make findings in favour of deceased parties, a prayer which was untenable given that the primary suit had long abated. Counsel further argued that the appellants having changed advocates representing them in the lower court post-judgment without leave of court, this appeal was rendered fatally defective and incompetent.

16. Counsel submitted that the trial court dismissed the appellants’ suit on two grounds: (i) the suit was not competently before court; and (ii) the appellants had failed to prove they owned the suit property. Counsel contended that the trial court was right in its findings given that the letter of allotment relied on by the appellants was issued to Bidii Self Help Group yet the suit was filed in the individual names of the appellants. Counsel further contended that no averment was made in the pleadings nor evidence produced connecting the appellants to the self-help group either as officials or as members. Counsel added that the trial court correctly found that the appellants had failed to bring evidence to show they were members of Bidii Self Help Group, hence the appellants had failed to prove ownership of the suit property.

17. Counsel contended that the plaint had described the defendants to include “others”, a position which was corroborated by PW1 during cross-examination when he admitted that the suit land was occupied by more people than those sued. Counsel argued that the law had no room to adjudge and make prejudicial findings against parties not sued and served with court papers. In conclusion, counsel submitted that no sufficient grounds nor arguments had been offered by the appellants to justify interference with the findings of the lower court.

Analysis and Determination 18. I have read and considered the original record of the trial court; the record filed in this appeal; the parties’ rival submissions; the relevant legal frameworks; and the jurisprudence applicable to the issues that fall for determination in this appeal. The appellants itemized seven grounds of appeal. In their subsequent written submissions; their advocate condensed the seven grounds of appeal into two concise issues. The 1st to the 5th respondents filed written submissions but did not frame concise issues.

19. Taking into account the grounds of appeal and the parties’ submissions, the following are the five key issues that fall for determination in this appeal:(i)Whether the trial court erred in finding that the appellants’ suit was improperly instituted incompetent and stood to be dismissed for lack of merit;(ii)Whether the suit in the trial court was wholly incompetent by dint of the fact that two of the plaintiffs died during pendency of the suit;(iii)Whether the trial court erred in finding that the appellants were not bonafide owners of the suit property;(iv)Whether the trial court erred in finding that the plaintiffs were not entitled to the prayers that were sought in the plaint; and(v)What order should be made in relation to costs of this appeal and costs of the suit in the trial court. Before I dispose the above issues, I will outline the principle which guides this court when exercising appellate jurisdiction.

20. This is a first appeal. The principle upon which a first appellate court exercises jurisdiction is well settled. The task of the first appellate court was summarized by the Court of Appeal in the case of Susan Munyi v Keshar Shiani [2013] eKLR as follows:“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”

21. The above principle was similarly outlined in Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”

22. The first issue is whether the trial court erred in finding that the appellants’ suit was improperly instituted was incompetent, and stood to be dismissed for lack of merit. The trial court noted in the impugned Judgment that the appellants had led evidence showing that the suit property was allocated to M/s Bidii Self-Help Group on 15/11/1999 and that they were members of the said group. The trial court further noted that the appellants had instituted the suit in their personal names instead of the Group instituting the suit through its officials or representatives. The trial court further noted that the appellants did not aver in their amended plaint or in their evidence that they had the authority of the members of Bidii Self Help Group to institute the suit. Counsel for the appellants faulted the trial court and contended that the authority to plead, dated 23/1/2017 and signed by twelve out of the thirteen plaintiffs, constituted sufficient authority.

23. What emerges from the totality of the pleadings and evidence that was before the trial court is that Bidii Self help Group was an unincorporated association of individuals. The Group was recognised by The District Gender and Social Development Office as a self-help group. It did not have the legal capacity to sue or be sued in its own name. Under the law, it could only sue or be sued through its officials.

24. Indeed, in Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank Nairobi HCCC No. 4116 of 1992 Justice Bosire (as he then was) stated the law as follows:“The position at common law is that a suit by or against unincorporated bodies of persons must be brought in the names of, or against all the members of the body or bodies. Where there are numerous members the suit may be instituted by or against one or more such persons in a representative capacity pursuant to the provisions of Order 1 rule 8 Civil Procedure Rules.”

25. The amended plaint did not allude to the fact that the appellants were suing on behalf of Bidii Self-help Group. The appellants did not tender any resolution by Bidii Self-help Group authorising them to initiate the suit. There was no averment in the plaint to the effect that the appellants were officials of the group suing on behalf of the Group. The authority to plead which was filed on 25/1/2017 was filed after initiation of the suit and was not a resolution by Bidii Self-help Group authorising the appellants to institute the suit. It was an authority by 12 out of the 13 plaintiffs authorising one of them [Fredrick Njuguna Ndungu] to plead and act on behalf of the 13 plaintiffs in the already instituted suit. That cannot be said to be a resolution by Bidii Self-help Group authorising the 13 plaintiffs to institute the suit on behalf of the self-help group.

26. It is clear from the pleadings and from the evidence tendered before the trial court that the appellants did not bother to demonstrate through pleadings and evidence that M/s Bidii Self-help Group had instituted the suit through them either as its officials or as its representatives. They instituted and prosecuted the suit as individuals. Indeed, this fact is evident from the declaratory relief sought in the plaint. In the circumstances, this court cannot fault the trial court for finding that the suit had been improperly instituted.

27. Did the trial court err in dismissing the suit? Having found that the suit before it was incompetent, the trial court should have downed its tools by striking out the suit at that point without venturing into the merits of the parties’ rival claims. The court having been presented with evidence that the allottee of the suit property was M/s Bidii Self-help Group and the said Group was not before the court to respond to the counterclaim, the trial court should not have rendered itself on the merits of the rival claims of ownership of the suit property. This would have given the parties the opportunity to institute competent claims before the court to adjudicate the question of ownership of the suit land without running a foul of the doctrine of res judicata.

28. For the above reasons, my finding on the first limb of the first issue is that the trial court did not err in finding that the suit in the trial court had been improperly instituted and was fatally incompetent. My finding on the second limb of the first issue is that the trial court erred in dismissing the suit and the counterclaim for lack of merit. The trial court should have stuck out the primary suit and the counterclaim without venturing into the merits of the rival claims instead of dismissing them for lack of merit.

29. The second issue in this appeal is the question as to whether the suit in the trial court was rendered wholly incompetent by dint of the death of two of the plaintiffs. My answer to the question is in the negative. The appellants instituted a suit in their individual names seeking declaratory and injunctive orders relating to land. Under Section 2 of the Law Reform Act, the cause of action which the appellants purported to ventilate was one that would survive their deaths. It was not a cause of action relating to defamation or seduction or inducing one spouse to leave or remain apart from the other or a claim for damages on the ground of adultery. Under Order 24 rule 2 of the Civil Procedure Rules, the surviving plaintiffs were entitled to proceed with the suit. Consequently, my finding on the second issue is that the deaths of two of the thirteen plaintiffs did not render the suit by the remaining 11 plaintiffs wholly incompetent.

30. The third issue is whether the trial court erred in finding that the appellants were not the bonafide owners of the suit property; and the fourth issue is whether the trial court erred in finding that the plaintiffs were not entitled to the prayers that were sought in the plaint. The two issues are intertwined. I will therefore dispose them simultaneously.

31. I have made a finding to the effect that the suit before the trial court had been improperly initiated by the appellants in their individual names. They did not have the locus standi to initiate the suit in their individual names. The said suit did not therefore provide a platform for adjudicating the merits of the rival claims. In the absence of Bidii Self-help Group, through its officials, questions relating to ownership of the suit property could not be effectually adjudicated. The trial court ought to have downed its tools the moment it made a finding to the effect that the suit before it was fatally defective. To the extent that the trial court proceeded to render itself on the issues relating to ownership of the suit property in the absence of Bidii Self-help Group, it erred.

32. Before I conclude, I will briefly address an issue which the respondents raised in this appeal. The respondents faulted this appeal on the ground that there was a post-judgment change of advocates in the trial court without leave of the trial court. They contended that this appeal was rendered fatally defective on that ground. I have considered the argument. What is before this court is an appeal instituted through a memorandum of appeal lodged in this court. The memorandum of appeal was not lodged in the lower court. In terms of legal representation, it is a new brief. There is no law that bars an appellant against instituting an appeal through a law firm different from the one that represented the appellant in the trial court. Order 9 rule 9 of the Civil Procedure Rules which the respondents relied on relates to proceedings in the same cause and in the same court where the judgment was rendered. This appeal is a new cause in an appellate court. No leave was required in so far as the lodging of the memorandum of appeal is concerned.

33. On costs, both rival parties had rival claims. Both rival parties made fatal errors. The appellants erred in instituting the suit in their individual names. The 1st to the 5th respondents erred in misdirecting their counterclaim. Consequently, parties will bear their respective costs of the appeal and costs of the suit in the trial court.

Disposal Orders 34. For the above reasons, this appeal partially succeeds in the following terms:a.The Judgment of the trial court in Ruiru SPMC E & L Case No 6 of 2021 rendered on 30/3/2022 is set aside and is substituted with an order striking out both the primary suit and the counterclaim on the ground that the primary suit was improperly instituted in the individual name of the plaintiffs while the counterclaim was in turn misdirected against the said individuals.b.Parties to this appeal and to the suit in the trial court shall bear their respective costs in the two courts.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 26TH DAY OF SEPTEMBER 2023B M EBOSOJUDGEIn the Presence of: -Mr Njoroge for the AppellantsMr Gichigi for the RespondentsCourt Assistant: Osodo/Hinga