Newton Wanjala & 12 others v Joseph Ziro Musioma, Cresent Construction Co. Ltd Kairu Enterprises Limited Pan African Bank Limited (In Liquidation) & Commissioner Of Lands [2016] KEELC 1238 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ENVIRONMENTAL AND LAND DIVISION

ELC. CASE NO. 300 OF 2004

NEWTON WANJALA & 12 OTHERS………………….. PLAINTIFFS

VERSUS

JOSEPH ZIRO MUSIOMA ……………………...……1ST DEFENDANT

CRESENT CONSTRUCTION CO. LTD. ………… 2ND DEFENDANT

KAIRU ENTERPRISES LIMITED …..…….….……3RD DEFENDANT

PAN AFRICAN BANK LIMITED

(IN LIQUIDATION) …………………………………….4TH DEFENDANT

COMMISSIONER OF LANDS ………………………5TH DEFENDANT

RULING

Coming up before me for determination is the Chamber Summons dated 15th December 2010 in which the 3rd Defendant/Applicant seeks for orders that this suit be dismissed and the amended plaint filed herein be struck out and that all consequential orders issued in this suit in favour of the Plaintiffs be discharged. The Applicant also seeks for the Plaintiffs to be condemned to pay the costs of this Application.

The Application is premised on the grounds appearing on the face of it together with the Supporting Affidavit of Patrick Maina Munene, one of the Directors of the 3rd Defendant, sworn on 15th December 2010 in which he averred that the 3rd Defendant was the registered proprietor of the parcel of land identified as Nairobi/Block 82/1761 which it charged to the 4th Defendant on 23rd May 1991 for a loan of Kshs. 24 million. He further averred that subsequently, that parcel of land was subdivided into two parcels namely Nairobi/Block 82/2710 and 2711 and that the loan from the 4th Defendant was transferred to parcel Nairobi/Block 82/2711 thereby discharging parcel Nairobi/Block 82/2710. He further stated that further subdivision was done to parcel Nairobi/Block 82/2711 to yield various sub-leases some of which are claimed by the Plaintiffs. He disputed the validity of the claims by the Plaintiffs to those subleases pointing out that it was illegal to transfer land which is subject to a charge without the previous consent in writing from the holder of the charge. He claimed that the titles held by the Plaintiffs are worthless pieces of paper because the 3rd Defendant holds title to those parcels of land and the 4th Defendant held the titles as security that are yet to be discharged.

The Application is contested. The 1st Plaintiff, Newton Wanjala, filed his Replying Affidavit sworn on 2nd February 2011 in which he averred that the matters deponed in the Application had already been brought before to this court through earlier Affidavits sworn on behalf of the 3rd Defendant in reply to the Plaintiff’s initial Application dated 29th March 2004. He further averred that Justice Nyamu (as he then was) ordered that the suit be heard on its merits in view of the conflicting claims over the same property. He added that most of the averments made in the Application are issues of fact which are disputed by the Plaintiffs and it is therefore necessary that they be subjected to the rigours of a full trial and cross-examination.

The Application was further contested by the 11th Plaintiff, Charles Mbugua Gathuru, who filed his Replying Affidavit sworn on 28th February 2011 in which he averred that it is true that the 3rd Defendant was the registered proprietor of Nairobi/Block 82/1761 which was surrendered to the Government of Kenya and new leases being Nairobi/Block 82/2710 and 2711 were issued. He also confirmed that it is true that the charge to the 4th Defendant was transferred to parcel Nairobi/Block 82/2711 on 23rd May 1991. He also averred that the 3rd Defendant further surrendered parcel Nairobi/Block 82/2711 to the Government on 8th February 1992 upon complying with section 63 of the Registered Land Act (now repealed), upon which the 3rd Defendant was issued with subleases for part of former Nairobi/Block 82/2711 being Block 82/2774-2790, 2815-2817, 2889-3987, 3103-3115, 3118-3142 and 5974 (hereinafter referred to as the “subleases”).  He further averred that the charge to the 4th Defendant was transferred to the subleases. He further stated that apart from the subleases, the remaining plots emanating out of the former Nairobi/Block 82/2711 became unalienated land which were later allocated to the Plaintiffs as former members of the Jesus Disciples Centre and issued with certificates of lease. He added that the Plaintiffs have legal titles to the suit premises which were issued and signed by the registrar of lands pursuant to section 37(1) and (2) of the Registered Land Act (repealed).

The 3rd Defendant filed its written submission. In its submissions it relied on section 26 of the Land Registration Act that title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor is the absolute and indefeasible owner except where the title has been acquired illegally, unprocedurally or through a corrupt scheme. It submitted that the plaintiffs illegally acquired title and held forged certificates of title therefore the court should order for the cancellation and or revocation of the titles. It further stated that a Land Registrar one S.L Were swore an affidavit where he denied issuing the Plaintiffs the certificates of searches and that the ones produced by the Plaintiffs in their affidavits were forged. It concluded that the Plaintiffs have no reasonable cause of action since they have admitted that the parcel which is the subject matter of this suit was part of the subdivision of parcel Nairobi/Block 82/1761 which was registered in the name of the 3rd Defendant and if this suit subsists it will amount to an abuse of the court process and should be struck out with costs.

The 5th, 10th and 11th Plaintiffs filed their written submissions on 1st March 2011. They submitted that they are the registered owners of the plots that gave rise to this suit upon allocation and taking control and/or physical possession until the 1st Defendant without any right or legitimate claim to ownership trespassed upon the Plaintiffs’ parcels of land interfering with their quiet possession over the same. They stated that there is a confusion on surrender, transfer and allocation of the suit plots from the former Nairobi/Block 82/2711. They further submitted that their titles as issued by the Registrar of Lands have to be proved to be genuine. They also submitted that the person who signed the allotment letters should be called to confirm whether the said letters of allotment were genuine.

I have considered the Application, the affidavits and the written submissions together with the authorities relied upon. The issue the court has been called upon to make a determination is whether the amended plaint dated 10th December 2009 raises any triable issue or is a sham and should be struck out. This Application has been brought through Order VI Rule 13 of the repealed Civil Procedure Rules which is the precursor to the present Order 2 Rule 15 of the Civil Procedure Rules, 2010. The said Rule15 provides that,

“(1) At any stage of the proceedings the Court may order to be struck out or amended any pleading on the ground that:-

It discloses no reasonable cause of action or defence in law.

Its scandalous, frivolous or vexatious; or

It may prejudice, embarrass or delay the fair trial of the action; or

It’s otherwise an abuse of the Court process and may order the suit be stayed or dismissed or judgment to be entered accordingly as the case may be.”

Striking out of pleadings is in the discretion of the Court and the court will do so when it is convinced that the applicant has demonstrated that the suit or pleading is scandalous, frivolous and vexatious or the suit is an abuse of the court process. In as much as the court had discretion to strike out pleadings, it has always been slow in undertaking this draconian action and has always favoured the need to hear a suit on its merit. Striking out cannot be resorted to unlessit is quite clear that the pleading objected to discloses no arguable case. Indeed it has been conceded that the rule is applicable only in plain and obvious cases. The Court of Appeal in D.T. Dobie & Co. (Kenya) Ltd vs. Muchina (1982) KLRheld that,

“The Court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the Court.  At this stage, the Court ought not to deal with any merits of the case for that is a function solely reserved for the Judge at the trial as the Court itself is not usually fully informed so as to deal with the merits “without discovery, without oral evidence tested by cross-examination in the ordinary way.”  (Sellers LJ (supra).  As far as possible indeed, there should be no opinion expressed upon the application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial Judge in disposing of the case in the way he thinks right.”

A look at this Application reveals that the 3rd Defendant has gone into lengthy details to explain and justify the grounds upon which the amended plaint should be struck out and have in essence delved into the realm of actual evidence in order to justify their case for striking out the Amended Plaint. The 3rd Defendant has alleged fraud on the part of the Plaintiffs in acquiring portions of former Nairobi/Block 2711/2711 which it surrendered to the Ministry of Lands while the Plaintiffs have argued that they acquired their parcels of land from the Ministry of Lands legally and lawfully. To prove such fraud, evidence is required which can only be adduced at a full hearing. Indeed the question of ownership of the suit premises is at the heart of this suit and can only be determined upon consideration of all the evidence adduced by all the parties at the trial. Accordingly, in bringing up that issue and seeking to rely on it in support of this Application is, in my opinion, embarking upon a trial of this case at this stage to the detriment of the parties in this suit. The 3rd Defendant cannot make a claim the amended plaint does not raise any cause of action. A cause of action does not necessarily mean that a party suing is bound to succeed in the action or that the party must have a right to that which he or she has claimed. In the case of Wenlock vs. Maloney & Others (1965) 1 W.L.R 1238 the court held that,

“This summary jurisdiction of the court was never intended to be exercised by a minute and a protracted examination of documents and the facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge and produce a trial of the case in chambers on affidavits only, without discovery and without oral evidence tested by cross examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power”

In light of the foregoing, I find that this Application is not merited and I hereby dismiss it with costs to the Plaintiffs.

It is so ordered.

DELIVERED AND SIGNED AT NAIROBI THIS 29TH

DAY OF JANUARY 2016.

MARY M. GITUMBI

JUDGE