Wilson Kiarie Kimani (suing as the personal representative of Margaret Wangui Kimani) v Aberdare Investment Limited, Thika Land Registrar, District Surveyor & Attorney General [2021] KEELC 3824 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 94 OF 2019

WILSON KIARIE  KIMANI(suing as the personal representative

of Margaret  Wangui Kimani).................................................................PLAINTIFF/APPLICANT

VERSUS

ABERDARE INVESTMENT LIMITED.......................................1ST DEFENDANT/RESPONDENT

THIKA LAND REGISTRAR..............................................................................2ND  DEFENDANT

THE DISTRICT SURVEYOR.............................................................................3RD DEFENDANT

ATTORNEY GENERAL......................................................................................4TH DEFENDANT

RULING

There are two Applications for determination. The one dated 22nd May 2019, by the Plaintiff/ Applicant and the second one is dated   14th February 2020, by the 1st Defendant/Applicant.

In the Application dated 22nd  May 2019, the   Plaintiff/ Applicant has sought for  orders that;

1. That this  Honourable Court  be pleased to issue an order of temporary injunction  against the Defendants  from demolishing, evicting, alienating, disturbing, interfering  with the Plaintiff ownership, possession, stay  constructions  through his agents, occupants  in land parcel  Thika Municipality Block 6/1086 pending the hearing and determination  of the suit herein.

2.  That the OCS Makongeni Police Station  do ensure compliance  of the orders herein.

The Application is premised on the grounds that the  plaintiff/ Applicant is the legal  Administrator of the Estate  of  his late mother  Margaret Wangui Kimani, who traded as Mawakim. That the deceased was the absolute  allotee  of the suit property  and the Applicant after the demise of his mother followed up  and paid all the requisite fees  and a certificate of lease was subsequently  issued in the name of the Deceased. That before the demise of the Plaintiff/Applicant’s mother, she had sold the suit property to various parties, who  have since constructed on the land various permanent buildings. That the 1st Defendant/ Respondent  has without any colour of  right, invaded the suit land  and carried on  acts of wanton damages  and destructions by demolishing  the constructions thereon  claiming ownership of the land. That if the 1st Defendant/ Respondent is allowed to continue with his illegal mission, the Plaintiff/ Applicant  through the occupants stands to suffer  irreparable loss and damage.

In his Supporting Affidavit, Wilson Kiarie Kimani averred that his late mother was in the business of buying and selling land to members of the public . That after her demise, he proceeded with the process of title acquisition . That the lease was issued in the name of his late mother as it was more expeditious. Further that the 1st Defendant’s/Respondent’s actions prompted them to look for a surveyor  to distinguish  the beacons between their parcels of land and 1st Defendant’s land  L.R 4953/2157. That the surveyor drafted a report that  which stated that their land  is distinct  and independent from the 1st Defendant’s/Respondent’s land. That the 1st  Defendant has filed Nairobi ELC 342 of 2013, against the occupants who he claims  are on its land L.R 4953/2157,  but that the occupants are on L.R 6/1086. Further that the Judge in ELC 342 of 2013, ruled that the  two parcels are unrelated and  he could file his own suit to canvass his interests. He urged the Court to stop the 1st Defendant/Respondent   from stepping foot in the suit property.

The Application is opposed  and the  1st Defendant/ Respondent through  John Njaaga Wango,its Managing Director swore a Replying Affidavit  on  10th June 2019,  and averred that the issues  raised in the instant suit are the same issues raised  in Nairobi  HCCC 342 of 2013,  which the Plaintiff/ Applicant is an Interested Party. That the Plaintiff/ Applicant filed  a Defence and Counter Claim  and the suit is pending before the High Court in Nairobi  and is scheduled for  hearing on  20th November 2019. Further that  on 18th September 2018, the Plaintiff/ Applicant filed an Application  seeking orders similar to the orders sought in the instant  Application.

That on 28th March 2019, the Court  dismissed the Application dated 18th  September 2018,  and the current suit amounts to abuse of the Court process. Further that the Plaintiff/ Applicant was ordered  by the Court to provide security for costs  in the sum of Kshs. 10,000,000/= as the Court considered his claim as frivolous  and that he is not a man of means and the Plaintiff has not provided security.

That  the current suit is meant to circumvent the order by the Court  that a sum of Kshs. 10,000,000/= be deposited in Court. He averred that he has been informed by his Advocate that Court orders must be obeyed and litigation must come to an end. Further that the Plaintiff’s/ Applicant’s claim against the Defendant/ Respondent is the same as the one pending before the Court of Appeal. That the Plaintiff/ Applicant filed  an Application  dated 24th  April 2019  in ELC 342 o  2013to transfer the suit from the High  Court  in Nairobi to this Court  which Application is pending.

That the deceased applied for a certificate  of titleon 1st August 2014, after her demise . Further that the Surveyor  N.G  Mwaura of Aero Survey went to site and prepared a report dated 6th June 2014,  which confirms their property is located on the position  it is supposed to be as  per the plan and coordinates. That  the report by  Messers  Kapanga Land Survey as attached  to the Plaintiff’s/ Applicant’s Application  contains falsehoods as the map attached does not exist anywhere in the Director of Surveys. That he is not aware if L.R 6/1086,  exists and he has no claim to it  or the Plaintiff’s / Applicant’s property. That as per the survey by Aero  Surveyors,the size of their land is2. 0 Ha while the size of the  land allegedly owned  by Margaret Wangui  is 1. 712 Ha.

The 2nd Application is the one dated 14th February 2020 by the 1st Defendant/Applicant seeking for orders that;

1. That this Court  be pleased to grant an order  of stay of proceedings  in this suit  pending the hearing and determination of the  Appeal  at the Court of Appeal  in Nairobi being  Civil  Appeal No.  50 of 2020 (Aberdare  Investment Ltd & Others …Vs… Wilson Kiarie Kimani).

2. The Costs of this Application be provided for.

The Application is premised on the ground that this Court delivered a Ruling on 19th December 2019,  dismissing the 1st Defendant’s  Preliminary Objection seeking to have the suit struck out. That the 1st  Defendant being aggrieved by the said Ruling  filed an Appeal. That the Appeal has high chances of success. That the Application has been filed timely and if the stay of proceedings in this suit is not granted, the Appeal will be rendered nugatory and the Applicant ill suffer irreparable  harm and damage. Further that the Plaintiff/Respondent will not  suffer any prejudice if the grant of the order  of stay of proceedings  is granted  as he will participate in the  Court of Appeal proceedings.  That it is in the interest of Justice   that the orders are granted so that the Appeal is not rendered nugatory.

In his Supporting  Affidavit,John Njaaga Wango,  the Managing Director of the 1st Defendant/Applicant averred  that he has been advised by his Advocate on record which advice he believes to be true that  the plaintiff/ Respondent will not suffer  any prejudice  and it is fair and just  for the order to be granted  for the ends of justice to be met. Further that since the Plaintiff admitted that there is a similar suit in which he participates as an interested party, it is just and fair for the Court of Appeal to determine the issue  whether an Interested Party in proceedings is a party for purposes of addressing of the issue in controversy.

The Application is opposed and the  Plaintiff, Wilson Kiarie Kimani swore a Replying Affidavit sworn on  3rd March 2020,  and averred that  this Court is not the proper Court to determine  whether the Appellant’s Appeal no. 50 of 2020,  is merited or not and the instant Application ought to have been filed at the Appellate Court. That the 1st Defendant/Respondent wants to delay the matter by filing  frivolous and scandalous Appeals which delay is causing insecurity  on L.R  6/ 1086, where the  Applicant has invaded and demolished some houses.  That  the  Applicant has been terrorizing residents and has hired goons who are instilling fear  by keeping vigil in people’s houses. He averred that he has been advised by his Advocate that the orders of stay  are granted where the Court is satisfied that there is a likelihood of loss  to be suffered by the Applicant. That there is no prejudice to be suffered by the Applicant  if stay is not garneted. That the Appeal is meant to raise  havoc  on the residents on the suit property.

The 1st Defendant filed  a Supplementary Affidavit sworn on  2nd September 2020,and averred that the Appeal raises pertinent issues  relating to Res Judicata and Jurisdiction  of a Court, to hear and determine  matter that has already been heard and determined. That he lodged a claim with the police about the authenticity of the Plaintiff and upon conclusion of investigations,  the Plaintiff was arraigned before  the Chief Magistrates Court  on criminal charges. That the injunctive orders that the Plaintiff is seeking are based on generated documents, which have no force in law. That the orders sought if granted will be injurious to the 1st Defendant and contravention  of Article 40 of the Constitution. That the Ministry of Lands and Physical Planning has confirmed that  the property known as L.R 6/1086,  which the Plaintiff is claiming does not exist .

That it is only fair that this Court grants the Appellate Court an opportunity to discharge  its appellate mandate . That on 4th of March 2020, his Advocates notified the   Registrar of the Court of Appeal  about the two appeals and requested that the same be consolidated and be heard together as the parties and the subject matter of the two are the same.

The Applications were canvassed with by way of written submissions which the Court has carefully read and considered.  The  issues for determination are;

1. Whether the suit is Res Judicata

2. Whether the Plaintiff/ Applicant is entitled to the  Injunctive Orders sought

3. Whether the 1st Defendant/ Respondent is entitled to the orders of stay of proceedings sought

1. Whether the suit is Res Judicata

Section 7 of the Limitations of Actions Act  provides;-

“No Court shall try any suit or issue  in which the matter directly  and substantially in issue  has been directly and substantially in issue  in a former suit between  the same parties  or between parties under  they  or any of them claim. Litigating under the same title  in a court competent  to try such  subsequent suit  or the suit in which  such issue  has been subsequently  raised and  has been heard and finally determined  by such Court.

In the case ofKenyariri …Vs… Salama Beach (2017)eKLR  the Court held that;

“to constitute Res Judicata, there must be adjudication  which conclusively determines the rights  of the parties with regards  to all or any of the matter  in controversy.”

Further in the case ofIndependent Electoral and Boundaries Commission …Vs… Maina Kiai & 5 Others (2017)eKLR,the Court of Appeal held as follows:

“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in distinctive but conjunctive terms:

a) The suit or issue was directly and subsequently in issue in the former suit.

b) The former suit was between the same parties or parties under whom they or any of them claim.

c) Those parties were litigating under the same title.

d) The issue was heard and finally determined in the former suit.

e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

Is the suit herein res Judicata?

There is no evidence that  NRB ELC 342 of 2013, has been heard and finally determined. Further the Court has gone through the  Plaint in ELC 342 of 2013 and notes that the prayers sought in  the said suit relates to L.R 4953/2157, while the prayers sought  in the instant suit  relate to  L.R 6/1086, As per the  above  decided cases, there is no doubt that  for res judicatato apply, the subject matter must be the same. In the  two suits, it is clear that the subject matter is not the same and therefore the Court finds and holds that the suit is not Res judicata.

2. Whether the Plaintiff/ Applicant is entitled to the  Injunctive Orders sought

The guiding principles in granting injunctive orders  are to be found in the case of Giella…Vs…Cassman Brown Co. Ltd 1973 EA 358 and and also in the case of Kibutiri…Vs…Kenya Shell, Nairobi High Court, Civil Case No.3398 of 1980 (1981) KLR, where the Court held that:-

“The conditions for granting a temporary injunction inEast Africa are well known and these are: First, the Applicant must show a prima facie case with a probability of success.  Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which might not adequately be compensated by an award of damages.  Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience. See also E.A Industries ..Vs..Trufoods (1972) EA 420. ”

It is not in doubt that  the three  principles as set out in the above cases are to be  applied in a sequential manner so that the Plaintiff/ Applicant  must satisfy all the three and failure to satisfy even one does not entitle  him to the injunctive orders sought.

First the Plaintiff/ Applicant must establish a prima  facie case. The Court of Appeal in the case of Mrao Ltd …Vs,,,First American Bank of Kenya Limited and 2 Others [2003] eKLR held that a prima facie case is;

“a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.”

From the available evidence, it is clear that the Plaintiff/Applicant is the Administrator of the estate of Margaret Wangui Kimani. The Court has seen the Certificate of Lease dated 1st August  2014, in  her name and being the Administrator, the  Plaintiff is mandated to  sue and be sued on her behalf.  Therefore, the Plaintiff has satisfied the Court that he has an interest in the suit property and thus has established a prima facie case.

The Plaintiff/ Applicant has averred that the  1st Defendant/ Respondent has  sought to demolish properties of  persons living in the said suit property. The Court has seen photographs of the same . It is the Court’s considered view that  if the evictions are  carried out, then the persons living on the suit property will suffer irreparable loss that cannot be compensated by way of damages if  the  Applicant was the successful litigant.   See the case of  Olympic Sports House Ltd…Vs…School Equipment Centre Ltd (2012) eKLR, where the Court held that:-

“a party cannot be condemned to take damages in lieu of his crystalized right which can be protected by an order of injunction.”

On the balance of convenience, the court finds that it tilts in favour of maintaining the status quo and the status quo herein is what existed before the wrongful act.  See the case of Virginia Edith Wambui…Vs…Joash Ochieng Ougo, Civil Appeal No.3 of 1987 (1987) eKLR, where the Court of Appeal held that:-

“The general principle which has been applied by this court is where there are serious conflicts of facts, the trial court should maintain the status quo until the dispute has been decided on a trial.”

The Upshot of the foregoing is that the  Plaintiff/ Applicant has established  the threshold for grant of injunctive orders and therefore he is entitled to grant of the same.

3. Whether the 1st Defendant/ Respondent is entitled to the orders of stay of proceedings sought

Te 1st Defendant/Respondent has sought for  stay of the instant proceedings pending the hearing and determination of the Appeal that he has filed against  the Court’s Ruling dismissing  the Preliminary Objection  stating that the suit herein is Res Judicata.

Jurisdiction is everything and without it a Court has no option but to down its tools. In the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 the Court held that;

“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added).

Further the threshold for stay of proceedings in the in Halsbury’s Law of England,4th Edition. Vol. 37page 330 and 332, that:-

“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”

“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”

It was the   1st Defendant’s /Respondent’s  contention that  the suit herein is Res judicata. In his Preliminary Objection, the 1st Defendant/Respondent was questioning the jurisdiction of this Court which objection was dismissed for not being a Preliminary Objection properly raised. As the jurisdiction of the Court has been called into question, the Court finds that it will then only be prudent to allow the 1st Defendant/Respondent litigate over the same so as to have the same be determined first  as  the proceedings of this Court would be rendered a nullity if the Court of Appeal  was to find that this Court did not have jurisdiction. Further, it would also be a waste of judicial time to litigate over the matter while a question of jurisdiction is hanging  over our head and set to be determined by the Court of Appeal. Consequently the Court finds that the same is merited.

Having carefully considered the two Applications herein, the Court finds and holds that  the  Notice of Motion Application dated 22nd May 2019, by the  Plaintiff/ Applicant is merited and the same is allowed. Further, the Court further finds that the Notice of Motion Application dated 14th February 2020, by the 1st Defendant/Applicant is also merited and the same is allowed. The Costs of both Applications shall be in the cause.

It is so ordered.

Dated, signed and Delivered at Thika this 25th day of March 2021

L. GACHERU

JUDGE

25/3/2021

Court Assistant -  Dominic

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Rulinghas been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Kanyi for the Plaintiff/Applicant

Mr. Ondabu  for the 1st Defendant/ Respondent

No appearance for the 2nd Defendant

No appearance for the 3rd Defendant

No appearance for the 4th Defendant

L. GACHERU

JUDGE

25/3/2021