[2024] KEELC 6444 (KLR)

Ethics and Anti-Corruption Commission v Oketch & 4 others (Environment & Land Case 28B of 2023) [2024] KEELC 6444 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6444 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyeri

Environment & Land Case 28B of 2023

JO Olola, J

October 3, 2024

Between

Ethics And Anti-Corruption Commission

Plaintiff

and

Gervas O Oketch

1st Defendant

Anne Njeri Ndumu

2nd Defendant

Charles Wambugu Wamae

3rd Defendant

Paul Matheri Wamae

4th Defendant

Wilson Gacanja

5th Defendant

Ruling

1. By the Notice of Motion dated 27th June 2023, the Ethics and Anti-Corruption Commission (the Plaintiff) prays for a temporary order of injunction to issue restraining the 3rd and 4th Defendants herein from dealing by way of sale, transfer, mortgage, development or in any manner whatsoever dealing with all that parcel of land known as Nyeri Municipality Block 1/1082 pending the hearing and determination of this suit.

2. The application is supported by an affidavit sworn by the Plaintiff’s investigator Simeon Lei in which the Plaintiff asserts that it had carried out investigations into the circumstances under which the suit property was acquired by the Defendants.

3. The Plaintiff asserts that its investigations had revealed that the suit property was originally public land and that the same had been irregularly, fraudulently, illegally and unlawfully hived off the compound of what was previously land parcel number Nyeri Municipality Block 1/144 which housed Government House No. HG 19 situated on Ring Road, Nyeri.

4. The Plaintiff avers that arising from the outcome of the investigations, it had filed this suit seeking inter alia, to recover the suit property and to have the same reverted to the public and that it is apprehensive that unless the orders sought are granted, the 3rd and 4th Defendants may deal with the suit property in a manner prejudicial to the intended outcome of the suit.

5. Charles Wambugu Wamae and Paul Matheri Wamae are opposed to the grant of the orders sought. In a Replying Affidavit sworn on 24th July 2023 by the 3rd Defendant, they assert that the Plaintiff has failed and/or neglected to disclose to the court pertinent facts pertaining to the dispute between the parties.

6. The Defendants aver that vide a Notice of Motion dated 23rd November 2022, they did commence judicial review proceedings as against the Plaintiff and another in Nyeri ELC JR No. E001 of 2022 wherein they sought inter alia mandatory orders of discovery and orders in respect of the conduct of the Plaintiff herein arising from their placing a restriction over the suit property.

7. The Defendants further assert that the issues in dispute in the earlier suit were inter alia the legality of the 3rd and 4th Defendants title over the subject property; whether there was any fraud or illegality arising from their conduct and whether the property was part of public land. Accordingly the Defendants aver that the issues in the aforementioned proceedings are the same as the issues raised in this court and that the same are therefore res-sub judice and an abuse of the court process.

8. In addition to their Replying Affidavit, the 3rd and 4th Defendants have filed a Notice of Preliminary Objection dated 24th July 2023 objecting to both the application and the entire suit on the grounds that:-1. The application and the suit offend the doctrine of lis pendens;2. The Applicant is before the court with unclean hands, Guilty of Misrepresentation of Facts and non-disclosure of pertinent facts;3. The proceedings are res subjudice and offend the Rationale of Issue Estoppel; and4. The Application and suit offend the 3rd and 4th Defendants right to Fair Administration action and access to justice.

9. I have carefully considered both the Defendants Notice of Preliminary Objection on the one hand and the Plaintiff’s pleadings and the Motion dated 27th June 2023. I have similarly perused and considered the detailed submissions and authorities as placed before the court by the Learned Counsels representing the parties herein.

10. By their Notice of Preliminary Objection dated 24th July 2023, the 3rd and 4th Defendants object to the suit as well as the application on some four (4) major grounds. In the first instance, the Defendants assert that the application and the suit do offend the doctrine of lis pendens.

11. As was stated by the Court of Appeal in Naftali Ruthi Kinyua –vs- Patrick Thuita Gachure & Another [2015] eKLR:“Lis pendens is a common law principle that was enacted into statute by Section 52 of the Indian Transfer of Property Act (ITPA)- now repealed. While addressing the purpose of the principle of lis pendens, Turner L.J. in Bellamy v Sabine [1857] 1 De J. 566 held as follows:“It is a doctrine common to the court both of law and equity, and rests, as I apprehend, upon this jurisdiction, that it would plainly be impossible that any action or suit could be brought to a successful determination, if alienation pendente lite were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendants alienating before the Judgment or decree, and would be driven to commence his proceedings de novo, subject again to defeat by the same course of proceedings.”

12. By their submissions filed herein, the Defendants contend that these proceedings breach the doctrine of lis pendens because the Plaintiff had filed these present proceedings while they are also actively participating in the previous proceedings. I was however unable to see how the Plaintiff could be said to be seeking to alienate the suit property pendente lite.

13. For a suit to be struck out on the basis of the doctrine, what was required was more than a mere allegation of the existence of a pending suit. For the Defendants to successfully rely upon the doctrine, they needed to prove that the prior case is the same, that the parties are substantially the same and that the relief sought from the court was the same.

14. From a perusal of the prayers sought in the Plaint herein, it is apparent that in instituting this suit, the Plaintiff wants the court to carry out an inquiry into the circumstances under which the Defendants came to acquire the suit property and for a rightful determination as to the ownership thereof. Those prayers cannot be equated with the 3rd and 4th Defendants prayers in their Judicial Review application dated 23rd November 2022 in which they urged the court to determine if the Plaintiff and the Land Registrar had acted lawfully in placing a restriction on the suit property without giving the 3rd and 4th Defendants a hearing.

15. It was clear to me that in exercising its judicial review mandate, the court could not delve into the substantive issues regarding the manner of acquisition of the suit property by the 3rd and 4th Defendants. As was stated by the Court of Appeal in Municipal Council of Mombasa v Republic & Umoja Consultants Limited (Civil Appeal No. 185 of 2001) [2002] eKLR:-“Judicial review is concerned with the decision making process, not with the merits of the decision itself. The court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account irrelevant matters… The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself such as whether there was or there was sufficient evidence to support the decision touching on violation of fundamental rights.”

16. That this court could not in its judicial review function venture into the circumstances of the acquisition of the suit property is clear from the Judgment rendered by this court on 22nd September 2023 in the said Nyeri ELC JR Application No. E001 of 2022 as attached to the Defendant’s Further Affidavit filed herein on 4th October 2023. It follows that I was not persuaded that this suit has breached the doctrine of lis pendens as to warrant its being struck out.

17. On the second aspect, the Defendants have urged the court to strike out the suit on account that the Plaintiff is before the court with unclean hands, that they are guilty of misrepresentation of facts and non-disclosure of pertinent facts. It was the Defendants’ case that despite the Plaintiff’s acknowledgement in this suit that there were other proceedings regarding the suit property, the Plaintiff had failed to lay out the facts and issues arising in those proceedings with the sole intent to mislead the court.

18. While the Plaintiff may not have laid out the details of the previous case in great detail, a summarized nature of the Defendants Judicial Review Application is clearly captured at Paragraph 14 of the Supporting Affidavit to the Motion dated 27th June 2023 where the Plaintiff deposes as follows:-“14. That the 3rd and 4th Defendants have instituted a suit in court to wit Nyeri ELC Judicial Review Application Number E001 of 2022 inter alia seeking to compel the Land Registrar to remove the restriction filed at the instance of the Plaintiff/Applicant restraining dealings with the suit property.”

19. That in my view was a good summary of what the previous suit was about and I was not persuaded that the Plaintiff was guilty of any misrepresentation. At any rate, while failure to disclose material facts may be a ground for a discharge of orders obtained without making such pertinent disclosure, I was not persuaded that the same would amount to a ground for striking out a suit.

20. The third ground of objection raised by the Defendants was that the proceedings herein are res-subjudice and that they offend the rationale of issue estoppel. On that ground, it was submitted that one of the issues for determination in the Judicial Review application was the validity of the 3rd and 4th defendants’ title over the suit property. From a perusal of the Judgment in the said matter attached to the Further Affidavit of the 3rd Defendant that was clearly not an issue before the court. At any rate, and as we have pointed out above, the court in exercising its judicial review function could not establish the circumstances under which the Defendants had obtained title to the property.

21. Lastly, the Defendants asserted that both the suit and the application offended their right to fair administrative action and access to justice. In support of that contention, the Defendants asserted that by filing this suit, the Plaintiff was seeking to tactfully defeat any Judgment that the court would issue in the judicial review proceedings. I was not persuaded that that was the case and or that it should warrant the striking out of the suit. From my perusal of Section 6 of the Civil Procedure Act, it was evident to me that the law contemplated the existence of two or more suits at the same time over the same subject matter.

22. When that happens, unless it was a clear case of abuse of the court process, the law did not contemplate striking out of the suit. Under the said Section 6 of the Civil Procedure Act, it is apparent that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. In this instance, the earlier suit has been concluded and there would therefore be no reasons to stay this one.

23. The upshot of the foregoing is that I did not find any merit whatsoever in the Defendants’ Preliminary Objection dated 24th July 2023 and the same fails on all the limbs thereof.

24. That then leaves me with the Plaintiff’s application for determination. By the said application, the Plaintiff has urged the court to restrain the 3rd and 4th Defendants from dealing by way of sale, transfer, mortgage, development or by in any manner whatsoever dealing with all that parcel of land known as Nyeri Municipality Block 1/1082 pending the hearing and determination of the suit.

25. It is the Plaintiff’s case that it has filed this suit for purposes of recovering the suit land and that they are apprehensive that unless the orders sought herein are granted, the 3rd and 4th Defendants may proceed and deal with the suit property in a manner that may be prejudicial to the intended outcome of this suit.

26. The Defendants have submitted that the Plaintiff’s application does not meet the threshold required for a grant of an injunction and that the same having been filed with unclean hands, the same is underserving of the equitable remedies sought therein.

27. The Plaintiff’s application is expressed to be brought pursuant to order 40 Rule 1 of the Civil Procedure Rules. The said order provides as follows:“(1).Where in any suit it is proved by affidavit or otherwise-a).that any property in dispute is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; orb).that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying or preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”

28. The principles governing the grant or denial of injunction orders were laid down in the celebrated case of Giella v Cassman Brown & Co. Ltd [1973] EA 358, where the court opined thus:-“First, an 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 would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.”

29. Arising from the foregoing, the first question that this court must ask itself is whether or not the Plaintiff has established a prima facie case with a probability of success at the trial. In answer to that question, we must turn to the case of Mrao Limited v First American Bank of Kenya Limited & 2 Others [2003] 1KLR, where the Court of Appeal defined a prima facie case as follows:“….in civil cases, it is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

30. Expounding on that definition of a prima facie case in Nguruman Ltd v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal further held as follows:“We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that that court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not prove title, it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the court takes the view that on the face of it, the applicant’s case is more likely than not to ultimately succeed.”

31. In the matter before me, the Plaintiff asserts that the suit property was originally public land unavailable for allocation as the same was hived off the compound of land parcel number Nyeri Municipality Block 1/144 which housed Government House No. HG. 19 situated on Ring Road in Nyeri Town. It is the Plaintiff’s case that the suit property was at some point in May 1995 irregularly and unlawfully allocated by the 1st Defendant and that the same was subsequently transferred to the 2nd Defendant who thereafter transferred the same to the names of the 3rd and 4th Defendants.

32. I was unable to find anywhere in both the Replying Affidavit sworn by the 3rd Defendant on 24th July 2023 and the further Affidavit sworn on 29th September 2023 where the Defendants deny that the suit property was originally public land. From a perusal of the Paragraph 5 of the Supporting Affidavit sworn earlier by the 3rd Defendant on 23rd November 2022 in the Judicial Review Case attached to his current Replying Affidavit, the Defendant asserts that they are the registered proprietors of the suit property having obtained a Certificate of Lease issued on 27th April 2011 for a term of 99 years. There is no explanation offered whatsoever as to how they obtained the Certificate of Lease.

33. In my considered view, given the issues raised by the Plaintiff and in the glaring absence of any explanation as to the circumstances in which the Defendants came to be registered as the proprietors of the suit property, the issue as to whether that registration was regular or irregular can only be determined at the trial. The question that I hear the Plaintiff to be asking is whether, given the fact that the suit property was said to constitute alienated Government land with a Government house thereon, the 5th Defendant or any of his subordinates could alienate the same in favour of the 1st Defendant or any other person for that matter.

34. In the circumstances herein, I am persuaded that the Plaintiff has demonstrated that there is probability that the suit property was initially public land and that there is need to interrogate the circumstances under which the same ended up in the hands of the Defendants herein. The Plaintiff has therefore demonstrated that it has a prima facie case against the Defendants that would require the Defendants to be called upon to make a rebuttal.

35. On the second limb of the requirements set out in Giella v Cassman Brown (Supra), I am also satisfied that the Plaintiff has demonstrated that the citizens of the Republic of Kenya stand to suffer irreparable injury if the Defendants were to proceed to alienate the suit property. If the suit property were disposed of prior to the conclusion of the trial herein, the Plaintiff will have nothing to recover in furtherance of its statutory mandate were the suit to succeed. There is therefore an urgent need to preserve the property pending the hearing and determination of the suit.

36. As wsa stated in Kenya Anti-Corruption Commission –vs- Stanley Mumbo Amuti [2011] eKLR:“An order of forfeiture can only be made if the property was still available for such forfeiture and it follows therefore that if there was no conservatory order, the property may well have ceased to exist thus rendering the success of the appeal pyrrhic.”

37. In the premises, I am persuaded that the Motion dated 27th June 2023 has merit. I allow the same in terms of prayer No. 4 thereof.

38. The costs of this application shall be in the cause.

DATED, SIGNED AND DELIVERED AT NYERI THIS THURSDAY 3RD DAY OF OCTOBER, 2024. In the presence of:Mr. Ayoo for the Plaintiffs.Mr. Kithinji for the 3rd and 4th Defendants.Court Assistant: Kendi…………………J. O. OLOLAJUDGE