Nyamaru & another (Suing as the Representative of the Estate of the Late Gitau Kilonda alias Gitau Kironda) v Gathecha & 8 others [2024] KEELC 3383 (KLR)

Nyamaru & another (Suing as the Representative of the Estate of the Late Gitau Kilonda alias Gitau Kironda) v Gathecha & 8 others (Environment & Land Case 187 of 2018) [2024] KEELC 3383 (KLR) (18 April 2024) (Ruling)

Neutral citation: [2024] KEELC 3383 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 187 of 2018

LN Mbugua, J

April 18, 2024

Between

Hannah Nyamaru

1st Plaintiff

Samuel Munjogu Ndung’u

2nd Plaintiff

Suing as the Representative of the Estate of the Late Gitau Kilonda alias Gitau Kironda

and

Stephen Gathecha

1st Defendant

Registar of Lands, Narobi

2nd Defendant

Julius Maina Karimi

3rd Defendant

Julius Mbugua Ngiiri

4th Defendant

Julia Wanjiku Gicheha

5th Defendant

Ngugagakio Investments Limited

6th Defendant

Simon Kamau Ithagu

7th Defendant

Benson Kirubi Mwangi

8th Defendant

George Njogu Nga’Ng’a

9th Defendant

Ruling

1. The 1st Defendant’s Notice of Motion dated 21. 11. 2023 is fordetermination. He seeks orders that the suit be struck out for reasons that; it is statutorily time barred, it does not disclose a reasonable cause of action, it is bad in law for non-joinder of parties and that it offends the companies Act as it is an affront to the doctrine of separate legal entity. The application is based on grounds on its face and on the 1st defendant’s supporting affidavit sworn on 21. 11. 2023. He avers that he was a chairman and director of Githurai Ting’ang’a Company Limited, a public land buying company incorporated in 1967.

2. That on 14. 3.2007, Hannah Nyamaru, one of the representatives of the estate of the late Gitau Kilonda attended an Annual General Meeting of the said company on behalf of the late Gitau Kilonda, who was a shareholder of the said company where she voted that the company be dissolved. She also declared that the company had issued her with all her plots and dividends and she had no claim. Subsequently, the company was dissolved and his directorship and chairmanship ceased.

3. That in 2018, the Plaintiffs filed this suit claiming that GithuraiTing’ang’a company Limited did not issue plots which purportedly belonged to Gitau Kilonda who died in 1988 and in light of the said pleadings, the Plaintiffs ought to have petitioned the court to restore the dissolved company and they also ought to have sought leave before suing him in his capacity as chairman/director.

4. He avers that the 3rd - 8th Defendants have put up 5 storey residential apartment blocks on the claimed plots and have peacefully occupied them for more than 12 years.

5. The application is opposed by the Plaintiffs vide the Replying Affidavit sworn on 13. 12. 2023 by Prof Kiama Wangai, advocate in conduct of the mater on behalf of the Plaintiffs. He avers that this suit was filed on 19. 4.2018 of which Githurai Tinganga Company Limited was sued as the 2nd Defendant. That on 11. 2.2021, the 1st Defendant filed a Preliminary Objection on grounds that the said company was dissolved on 29. 3.2009 following which the plaint was amended on 14. 10. 2021 to remove the said 2nd Defendant from the suit and to enjoin the 3rd - 9th Defendants.

6. He avers that the suit is not statute barred as it is grounded on fraud and it does not offend the companies Act as Githurai Tinganga Company Limited is no longer a party to the suit and all parties sued are necessary parties.

7. The 2nd -9th Defendants did not file any responses.

8. I have considered all the issues raised herein including the rival submissions. The 1st Defendant seeks to have the suit struck out on several grounds. One of them is that there is non-joinder of parties. However, under Order 1 Rule 9 of the Civil Procedure Rules, a suit cannot be defeated due to misjoinder or non-joinder of parties. See William Kiprono Towett & 1597 Others v Farmland Aviation Ltd & 2 Others [2016] eKLR.

9. Another ground is that the suit offends the Salomon Principle which dictates that a director of a company can only be sued after such company’s cooperate veil is lifted. However, it has not been pleaded that the 1st defendant is the chairman of the company, which apparently was dissolved. What is pleaded in the amended plaint at paragraph 23 is that; “The 3rd to 9th Defendants herein acquired the leases and subdivision scheme approval fraudulently in cahoots with the 1st and 2nd Defendants”. That ground too fails.

10. Yet another ground is that the Plaintiff’s claim is statute barred as the cause of action arose in 1988. That however, is not a fact which can be ascertained from the plaint. What has been pleaded is that the plaintiff HAS SINCE LEARNT of the fraudulent subdivisions and registration of the suit land. Further, the 1st defendant has not raised the issue of limitation in his pleadings (defence) filed way back on 11. 2.2021.

11. The 1st Defendant argues that these are matters contained in the Plaintiffs’ witness statements. I opine that the 1st Defendant is jumping the gun. It would be improper for this court to dismiss this suit and condemn the Plaintiffs unheard on the basis of statements that have not been tested in evidence. Indeed what I discern and as rightly submitted by the plaintiff is that the 1st defendant is prosecuting the case in the platform of an application. The 1st Defendant shall have an opportunity to present his case and test the veracity of the said statements, thus he should be patient with the process.12. The right to be heard is sacrosanct as embodied in Article 50 (1) of the Constitution which stipulates that;

12. The right to be heard is sacrosanct as embodied in Article 50 (1) of the Constitution which stipulates that; “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and publ ic hearing before a court or, if appropriate, another independent and impartial tribunal or body”.

13. In the case of Kenya Trypanosomiasis Research Institute v Anthony Kabimba Gusinjilu [2019] eKLR, it was stated that;“The right to be heard is a cardinal rule established under the principles of natural justice generally expressed as audi alteram partem. This Latin phrase literally translates 'hear the parties in turn' and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means that a party, no matter how seemingly frivolous or inconsequential, must be given a fair hearing…”

14. In the end, I find that the application is not merited, the same is dismissed with costs to the plaintiff. Parties should focus on the main suit instead of dwelling on interlocutory matters.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF APRIL, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Wangai for PlaintiffM/s Munyua for 1st DefendantCourt assistant: EddelELC CASE NO. 187 OF 2018 (Ruling) Page 3 of 3