Nirestein & another v Taga & 3 others [2024] KEELC 3335 (KLR)

Nirestein & another v Taga & 3 others (Environment & Land Case E003 of 2024) [2024] KEELC 3335 (KLR) (23 April 2024) (Ruling)

Neutral citation: [2024] KEELC 3335 (KLR)

Republic of Kenya

In the Environment and Land Court at Narok

Environment & Land Case E003 of 2024

CG Mbogo, J

April 23, 2024

Between

Michelle S. Nirestein

1st Plaintiff

Mara Napa Camps & Conservation Center Trust

2nd Plaintiff

and

Harrison Penmba Taga

1st Defendant

Miriam Tankua Kashaa

2nd Defendant

Friends Of Maasai Mara

3rd Defendant

Mara Napa Camps Limited

4th Defendant

Ruling

1. Before this court for determination is the Notice of Preliminary Objection dated 1st March, 2024 filed by the defendants herein seeking that the plaint dated 16th February, 2024 be struck out with costs, on the following grounds: -1. That this honourable court lacks jurisdiction to entertain the suit herein pursuant to the provisions of Article 162 (2) of the Constitution of Kenya, 2010 as read with the provisions of Section 12 of the Environment and Land Court Act, 2011. 2.That the nature of claim and relief sought raised by the plaint arise from a commercial dispute therefore depriving this court jurisdiction to hear this matter.3. That there is a pending suit in the High Court filed by the 3rd and 4th defendants against the 1st plaintiff herein Civil Suit No. E001 of 2024: Friends of Maasai Mara Limited & Another versus Michelle Nirestein which raises the self-same issues and contentions as those that have been or will be litigated in the said matter. The plaint is thus res sub judice.4. That the 2nd plaintiff as named has no legal capacity to institute these proceedings.5. That the 2nd plaintiff as named is not an incorporated body under Section 3 of the Trustees (Perpetual Succession) Act Cap 164 therefore lacking in power to sue or be sued.

2. The notice of preliminary objection was canvassed by way of written submissions. The defendants filed their written submissions dated 22nd March, 2024 where they raised four issues for determination as listed below: -i.Whether the current court has jurisdiction over a commercial dispute.ii.Whether filing of ELC Case No. E003 of 2024 Michelle Nirestein & Another versus Harrison Pemba Taga & 3 Others is an abuse of the court’s process.iii.Whether filing of ELC Case No. E003 of 2024 Michelle Nirestein & Another versus Harrison Pemba Taga & 3 Others was sub judice.iv.Whether the 2nd plaintiff an unincorporated body under Section 3 of the Trustees (Perpetual Succession) Act Cap 164 can sue and/or be sued.

3. On the 1st issue, the defendants submitted that the plaintiff was a donor and the defendants enjoyed a donor and donee relationship. They went on to submit that in her plaint, the 1st plaintiff is seeking a refund of the full investments and also claims special damages arising out of loss of business. They also submitted that the 2nd and 3rd defendants are different legal persons from the 1st defendants and therefore execute their mandate as legal entities registered under the Companies Act through their Directors.

4. The defendants further submitted that the matter in issue in the plaint dated 6th February, 2024 is purely commercial and contractual in nature and enforceable in civil courts. That Section 13 of the Environment and Land Court Act does not confer this honourable court jurisdiction over disputes of a commercial nature.

5. On the second issue, the defendants submitted that this court has inherent jurisdiction to protect itself from abuse or to see that its process is not abused. Reliance was placed in the case of Ahmad & Another versus Kadhi Mombasa; Khalifa & Another (Interested Party) (Judicial Review 4 of 2020) [2021] KEHC 133 (KLR)(21 October 2021).

6. On the third issue, the defendants submitted that in determining whether or not sub judice applies, it is the substance of the claim that ought to be looked rather than the prayers sought. They went on to submit that the substance of ELC Case No. E003 of 2024 is wholly identical to the earlier suit lying in the High Court and therefore prohibited and cannot be entertained in the current court. The defendants relied on the provisions of Section 6 of the Civil Procedure Act as well as the cases of Heritage Insurance Company Limited versus Patrick Kasina Kisilu [2015] eKLR, Kenya National Commission on Human Rights versus The Attorney General; IEBC & 16 Others (Interested Parties) [2020] eKLR, Barclays Bank of Kenya Limited versus Elizabeth Agidza & 2 Others [2012] eKLR and Republic versus Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya [2020] eKLR.

7. On the fourth issue, the defendants submitted that in the application dated 16th February, 2024, the 2nd plaintiff submitted its documents for registration on 12th February, 2024, and as such, has not complied with the mandatory requirements for registration and had not been issued with a certificate of incorporation. They went on to submit that the 2nd plaintiff misled the court using an application for registration in place of a certificate of incorporation which is taken as conclusive evidence of satisfaction of requirements of registration. It was submitted that the 2nd plaintiff did not have the locus standi to lodge this suit and thus had no legal capacity.

8. The plaintiffs filed their written submissions dated 11th April, 2024. The plaintiffs submitted that the subject matter of this suit falls within this court’s jurisdiction as can be seen from the body of the plaint and the prayers sought. They submitted that Section 13 of the Environment and Land Court Act grants this court jurisdiction to hear and determine this dispute as it relates to environmental planning and protection, title, land use planning, private land and contracts.

9. The plaintiffs further submitted that the question of whether this matter is sub judice does not form a proper basis for raising a preliminary objection as it will be necessary for the court to peruse the pleadings and delve into the facts of the case. They went on to submit that the matter in issue before the two courts are different as can be seen from the key prayers sought in this suit and in the suit filed at the High Court.

10. They further submitted that the claim in this case is the ownership of parcels nos. Cis-Mara/Talek/406, Cis-Mara/Talek/407 and Cis-Mara/Talek/ 408 which are not the subject matter of the High Court suit referred to by the defendants. They also submitted that if the court is of the view that the two cases raises similar issues, the proper cause of action would be for the consolidation of the two cases so that they may be heard together in the interests of the overriding objectives of the Civil Procedure Act. They relied on the case of B.M. versus S.M. [2012] eKLR.

11. The plaintiffs further submitted that the defendants rushed to the High Court on 8th February, 2024 long after the 1st plaintiff had issued demand and notice of intention to sue, and were at all times aware of the impending suit. It was their submission that even if the court were to hold that this suit is sub judice, that would not be a ground for the striking out but rather, the matter can be stayed as required by Section 6 of the Civil Procedure Act.

12. The plaintiffs submitted that the 2nd plaintiff is a properly incorporated trust in accordance with the law and these disputed set of facts makes this issue not amenable for resolution through a preliminary objection as they require verification through the process of evidence.

13. I have considered the preliminary objection and the written submissions as well as the authorities by both parties. In my view, the issues for determination are as follows: -i.Whether this court has jurisdiction to hear and determine this matter.ii.Whether the 2nd plaintiff has legal capacity to institute these proceedings.

14. A Preliminary Objection was described in the Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd (1969) EA 696 to mean: -Per Law, JA“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction 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”.Further Sir Charles Nebbold, P stated thus: -“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”.

15. This court having made a finding on the description of a preliminary objection, it is not in doubt that a preliminary objection raises pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct.

16. However, it cannot be raised if any of facts have to be ascertained from elsewhere or the court is called upon to exercise judicial discretion. In the case of Quick Enterprises Ltd Vs Kenya Railways Corporation, Kisumu HCCC No.22 of 1999, the court held that: -“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.”

17. It is also this court’s opinion that in determining a preliminary objection, the court will also consider that the preliminary objection must stem from the pleadings and raise pure point of law. See the case of Avtar Singh Bhamra & Another Vs Oriental Commercial Bank, Kisumu HCCC No.53 of 2004, where the court held that: -“A preliminary objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.”

18. As I embark on determining the merits of the preliminary objection, this court has to first determine whether what has been raised herein satisfies the ingredients of a preliminary objection. This court is persuaded by the findings in the case of Oraro Vs Mbaja (2005) 1KLR 141, where the court held that:-“Anything that purports to be a preliminary objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”.

19. On the first issue, the defendants herein contended that the nature of the claim and the reliefs sought arise from a commercial dispute thus depriving this court the jurisdiction to hear this matter. Secondly, they contended that the plaint is sub judice as the issues raised in this case are the same issues raised in Civil Suit No. E001 of 2024, Friends of Maasai Mara Limited & Another versus Michelle Nirestein which is actively before the High Court.

20. The issue of jurisdiction has substantially been dealt with in Court of Appeal in the Owners of the Motor Vessel “Lillian S” versus Caltex Oil (Kenya) Ltd [1989] eKLR where it was stated as follows on the question of jurisdiction of a Court of law.“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for the continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

21. This court is confined to the jurisdiction bestowed upon it by the Constitution, and the Environment and Land Court Act. Section 13 (2) of the Act grants this court express and original jurisdiction in matters;“(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;

(b)relating to compulsory acquisition of land;

(c)relating to land administration and management;

(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and

(e)any other dispute relating to environment and land.”

22. I have perused the plaint dated 16th February, 2024, where the plaintiffs are seeking the following orders: -i.A declaration that the 1st and 3rd defendants acquired the titles for parcels number Cis-Mara/ Talek/ 406, Cis-Mara/ Talek/ 407 and Cis-Mara/ Talek/ 408 illegally, unprocedurally, fraudulently and through misrepresentation.ii.A declaration that the 1st and 3rd defendants holds the titles for parcels number Cis-Mara/Talek/ 406, Cis-Mara/Talek/407 and Cis-Mara/Talek/ 408 in trust for a charitable entity set up for the benefit of the Maasai Mara community.iii.An order of specific performance compelling the 1st and 3rd defendants to transfer parcels number Cis-Mara/ Talek/ 406, Cis-Mara/ Talek/ 407 and Cis-Mara/ Talek/ 408 and all improvements thereon to the 2nd plaintiff herein, a charitable entity incorporated for purposes of the charitable project.iv.That the 1st defendant do pay the 1st plaintiff the sum of US $ 11,083 being the sum of money paid by the 1st plaintiff for 3. 5 acres of land which the 1st defendant did not purchase and/or diverted to personal use.v.A declaration that the 1st and 2nd defendants fraudulently acquired Mara Napa Camps, built on parcel no. Cis-Mara/Talek/406, from the intended charitable purpose to their personal property.vi.An order for the transfer of ownership, control, and management of Mara Napa Luxury Camps from the 1st,2nd and 4th defendants to the 2nd plaintiff a charitable entity incorporated for purposes of the project.vii.An order of mandatory injunction compelling the defendants to transfer the ownership and logbooks for motor vehicles registration numbers KCW 570H, KBT 914A, KCR 333Q, KCS 425A, KDC 168L, KDB 596Y, KCD 122V, KDD 316Y, KBJ 365W, KHMA a 756S 426F caterpillar, KTCA 977A a new Holland tractor and ZC 5875 & ZE 7317 trailers to the 2nd plaintiff, a charitable entity incorporated for purposes of the project.viii.The 1st defendant do pay the 1st plaintiff the sum of USD 380,000 being the sums of money the 1st defendant took from or charged on the 1st plaintiff’s credit cards Marriot Bonvoy Card No. 4388540088209084, World of Hyatt Card No. 4147404107994691 and Capital One Card No. 4147098066066010 without her authorization.ix.A permanent injunction barring the defendants from disposing off any assets of Mara Napa Luxury Camps and from withdrawing any moneys from its bank accounts for use other than the operation of the camp.x.A permanent injunction barring the defendants from disposing off or in any manner dealing with parcels numbers Cis-Mara/Talek/406, Cis-Mara/Talek/ 407 and Cis-Mara/Talek/ 408. xi.A forensic audit be conducted by a reputable firm into the accounts and financial statements of Mara Napa Camps, Friends of Maasai Mara and all related from the date Mara Napa Luxury Camps started operation to the date the order is made.xii.An order for the payment back into the bank accounts of Mara Napa Luxury Camps, all sum of money established to have been embezzled by the defendants through forensic audit process.xiii.The 1st,2nd,3rd and 4th defendants do pay the plaintiffs mesne profit for the 5 years they have had possession and use of parcels numbers Cis-Mara/Talek/406, Cis-Mara/Talek/407 and Cis-Mara/Talek/408. xiv.In the alternative and without prejudice to the foregoing prayers, the 1st,2nd,3rd and 4th defendants do refund the plaintiff the full investment in the venture totaling the sum of USD 2,452,619. xv.The plaintiff be awarded the costs of this suit.xvi.The plaintiff be awarded interest on the sums of money herein awarded at court rates.xvii.Any other relief that this court deems just and expedient to grant.

23. From the prayers sought as outlined herein above, and which can be granted by this court, overlap each other with the prayers that ought to be sought and granted by the High Court.

24. A general reading of the plaint, gives a narration of events and the general nature of the dispute that led to the filing of the suit. As such, a further analysis of whether the claim is of a commercial nature or not, would require this court to comb through the evidence. My finding is that whereas some of the prayers sought cannot be granted by this court, that does imply that the plaint ought to be struck out. What this court can only do is not to grant the same if the party succeeds at the end of the trial. I also note that the defendants are yet to file their statement of defence. In other words, both parties are yet to comply with Order 11 of the Civil Procedure Rules to ensure the matter is set for hearing which leaves room for amendment of the pleadings.

25. On whether the instant case is sub judice, according to Black Law Dictionary 9th edition, sub judice means, “before a court for determination…’’

26. The doctrine of res sub-judice prevents a court from proceeding with the trial of any suit in which the matter in issue is directly and substantially the same with the previously instituted suit between the same parties pending before same or another court with jurisdiction to determine it.

27. The provisions of Section 6 of the Civil Procedure Act defines the above principle or the doctrine as follows;‘‘…No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title, where such suit or proceeding is pending in the same court or any other court having jurisdiction in Kenya to grant the relief claimed.’’

28. Even as the court is desirous of establishing whether or not the instant case is sub judice, it cannot do so, for the reason that the defendants have not supplied this court with evidence of the pleadings filed before the High Court to confirm the same. The annexures to the application does not contain a copy of the plaint said to be filed at the High Court. In the absence of such evidence, it is impossible for this court to determine whether the instant case is sub judice.

29. On the second issue, the defendants contended that the 2nd plaintiff has no legal capacity to institute these proceedings as it is not incorporated under Section 3 of the Trustees (Perpetual Succession) Act. Again on this issue, and in a bid to satisfy itself as to whether the 2nd plaintiff indeed has capacity, this court would again be required to comb through the evidence ousting the preliminary objection.

30. The only way out for the defendants would be to file and serve their defence. That way, the plaintiffs on the other hand would be in a position to respond through evidence, if any, as to the existence of whether the 2nd plaintiff is registered.

31. From the above, this court finds no merit in the notice of preliminary objection dated 1st March, 2024. It is hereby dismissed. Costs in the cause. Mention on 7th May, 2024 for further directions. Orders accordingly.

DATED, SIGNED & DELIVERED VIA EMAIL THIS23RD DAY OF APRIL, 2024. HON. MBOGO C.G.JUDGE23/04/2024. In the presence of:-Mr. Meyoki Pere – C. A