Syrup Distributors Limited v Loki Developers Limited [2017] KEHC 2522 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 166 OF 2008

SYRUP DISTRIBUTORS LIMITED………….….... APPELLANT

VERSUS

LOKI DEVELOPERS LIMITED…………....….…RESPONDENT

(Appeal from the Ruling and Order of Hon. E.C. Cherono (Mr) in Milimani CMCC No. 12932 of 2005 delivered on 19/7/2006)

JUDGMENT

This Appeal is against the ruling and Order of the lower court delivered on 19th July, 2006 allowing the Respondent’s Plaintiff’s Notice of Motion Application dated 12th January, 2006 which was seeking to bar the Appellant from trespassing on to the land known as L.R No. 17870 and to have the Appellant evicted therefrom and the illegal structures erected therein demolished.  The application is supported by the Affidavit of Sammy Boit Kogo the Managing Director of the Respondent who depones that the Respondent is the registered owner of the suit premises and has annexed a copy of the Certificate of Title dated 19th February, 1993 and a letter of allotment from the department of Lands dated 10th September, 1992.  The Respondent states that on or about March, 2005, the Appellant wrongfully and unlawfully encroached onto the suit property without any right in law and has threatened to continue trespassing.

The Appellant (Defendant/Respondent in the lower Court) filed a Replying Affidavit dated 20th January, 2006 sworn by John Kiereini Kirika, a Director of the Appellant who depones that by an Agreement made in the year 1975, Kenya Railways Corporation granted the Appellant a License for occupation and use of the suit premises.  That the last agreement was renewed on 24th April, 1996 and the same is annexed to the affidavit and receipts of payments for the annual license fees.  The Appellant further avers that the suit premises belongs to the Kenya Railways Authority who owns a warehouse on the premises which the Appellant is licensed to use.

Upon hearing the application, the Lower Court made orders;

(a) THAT the defendant/respondent whether by itself, its agents, servants, directors and/or employees do deliver immediate vacant possession of all that piece of land in Nairobi area known as L.R No. 17870, the property of the Plaintiff/applicant failing which the plaintiff/applicant be at liberty to forcefully evict the defendant/respondent from the suit premises and the O.C.S Kinyango police station in Dandora Estate to supervise such eviction to ensure peace and order is maintained;

(b) THAT the Defendant/Respondent to bring down and remove all the illegal structures in the suit premises and remove the debris thereof, failure to which, the plaintiff/applicant be at liberty to remove such debris at the defendant’s cost and the OCS Kinyango police station in Dandora estate to supervise the demolition to ensure peace and security is maintained

(c) Pending the hearing and determination of the suit.

The Appellant was aggrieved by the decision of the trial court and lodged a Memorandum of Appeal dated 1st April, 2008.  By that time the Respondent had already executed the orders of the lower court.  The Appeal is based on 10 grounds which can be summarized as below;

a) That the trial court did not have jurisdiction to hear and determine a dispute on a title registered under the provisions of the Registration of Titles Act Cap. 281 of the Laws of Kenya and the definition of “Court” under section 2 thereof means “High” Court.

b) That the suit property was worthy Kshs. 8,500,000/= and the jurisdiction of the Court was limited to Kshs. 500,000/=and therefore the trial court did not have jurisdiction over the same.

c) That the trial magistrate erred in making the orders when the Appellant had not been served with Summons to Enter Appearance.

d) That the trial Magistrate erred in entertaining the suit which was brought over 12 years and 9 months and 13 days out of the law of limitation for the tort of Trespass which is 3 years

This being a first appeal, the role of this court will be to re-evaluate the evidence that was before the lower court and determine whether that appeal is to stand or not.  In the case of Mbogo & Another -v- Shah (1968) EA 93 at 96, it was stated thatan appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which the court should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.

The issues for determination by this court will be based on the grounds of appeal as captioned in paragraph 4 herein above.

This Appeal was canvassed by way of written submissions. In its submissions dated 30th May, 2017, I note that the Appellant only submitted on two grounds out of the ten grounds. That is on jurisdiction and service of summons.  The Appellant relies on Order 5 rule 1 (2) of the Civil Procedure Rules which states that, “Every summons shall be signed by the judge or an officer appointed by the judge and shall be sealed with the seal of the court without delay, and in any event not more than thirty days from the date of filing suit” and order 5 Rule 1 (6) that,

“Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue or notification, whichever is later, failing which the suit shall abate.”

The Appellant did not cite any case law to support his submissions.

The Respondent filed its submissions dated 17th July, 2017 and argued that the Respondent had instituted the suit in the lower court under the simple common law claim of trespass and no claim on proprietorship was made by the Respondent who was the Plaintiff in that case and hence there was no claim on ownership.  The Respondent relied on Section 23(1) of the Registration of titles Actwhich provides that,

“The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party” and submitted that by virtue of the Certificate of title issued in its name in the year 1993, the Respondent is the absolute and indefeasible owner of the suit property.

I have considered the record of appeal, the submissions of the both parties and the authorities cited.  It is the nature of the Respondent’s suit and the prayers sought therein that will be of consideration in determining the issue of jurisdiction of the lower court to entertain the claim.  The subject suit is based on trespass and the ownership of the suit property is not contested.  My perusal of the record reveals that there was a preliminary objection on jurisdiction which was heard and a ruling on the same delivered on 14th March, 2006.  In the said ruling the trial magistrate found, which holding I fully agree with, that the issue in dispute in this case is a simple common law claim for trespass which can very well be determined by a subordinate court and there is no dispute on ownership of the property.

The Appellant submitted that the suit property being LR. No. 17870 is the property of Kenya Railways Authority (the “Authority”) which authority is not a party to this suit and the authority has not contested the Certificate of title issued to the Respondent herein.  The Appellant claims that it entered into a license agreement with the Authority over the suit property in the year 1975 and the latest renewal was made in the year 1996.  Annexed to the Replying Affidavit of the Appellant is the Agreement made in the year 1996.  There is no evidence on record to show that the license agreement was initially entered into in the year 1975 as claimed, In deed all the annexures therein which include receipts, invoices and correspondence between the Appellant and the Authority date from the year 1995.  Therefore this court can only make a reasonable conclusion that the dealing of the Appellant with authority started while the respondent was still the registered owner of the suit property with an indefeasible title.

The claim that the suit was brought over 12 years and 9 months and 13 days out of the limitation period for the tort of trespass which is 3 years was not substantiated by the Appellant in its submissions.  The Respondent was categorical that the Appellant encroached on the property in the year 2005 whereas the subject suit was filed in the year 2006.  Further this issue was not raised in the trial court and only appears in the appeal.

Lastly, on the issue of Summons to Enter appearance, the Respondent submitted that the Appellant participated actively in the proceeding and that the issue was not raised in the earliest possible opportunity, that it will not be appropriate to annul the entire proceeding on that basis as the Appellant has not shown what prejudice its likely to suffer. The Respondent relied on the case of TERRY WANJIRU KARIUKI V EQUITY BANK LIMITED & ANOTHER [2012] eKLR where the court held that,

”Therefore taking into account the unique circumstances of this case, I am not inclined to adopt the more drastic approach of terminating these proceedings for failure by the plaintiff to comply with the dictates of the rules of procedure. I have also perused the Court file and I have not been able to find how the first advocates for the defendants brought themselves on record. Whereas the defendants had no obligation to enter appearance without being summoned to do so, the practice that is common in this jurisdiction is for one to enter appearance under protest. However, at the very minimum one would have expected that the advocates instructed by the defendants to appear on their behalf would have filed notices of appointment of advocates in absence of which they may as well have had no locus in the matter. The closest document to that is a notice of change of advocates filed by the firm of Sichanji & Company Advocates on 6th February 2012. ”

The court in the case of Kenya Pipeline Company Limited v Mafuta Products Limited [2014] Eklrnoted that

“The purpose of Summons to Enter Appearance is to inform a defendant of the institution of a suit.  If a defendant files a Memorandum of Appearance, it is deemed to have had due notice of the institution of such a suit. The Defendant filed its Memorandum of Appearance on 12th November 2008. Having failed to file its Defence within the stipulated period, the Plaintiff was entitled to request for judgment against it and for the court to enter the same accordingly.”

For the above reasons this appeal is dismissed with costs.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 3rdday of November, 2017.

...........................

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent