[2019] KEELC 1318 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT EMBU

E.L.C. CASE NO. 71A OF 2014 (O.S.)

(FORMERLY ELC KERUGOYA NO. 47 OF 2012 (O.S.)

(FORMERLY EMBU H.C. CIVIL CASE NO. 36 OF 2007 (O.S.)

AND

IN THE MATTER OF PARCELS OF LAND

MBEERE/MBITA/2088, 2089, 2090, 2094, 2171,

2200,2204, 2205, 2298, 3775 AND 3777

FAUSTINO NJERU NJOKA...............................................1ST APPLICANT

FRANCIS NJERU NYAGA.................................................2ND APPLICANT

VERSUS

RUGANO NTHIGA..........................................................1ST RESPONDENT

MWIRECA KIARIRWA.................................................2ND RESPONDENT

NJOKA KONJI................................................................3RD RESPONDENT

NJERU NGICUVA..........................................................4TH RESPONDENT

MUGO NYAGA NJERU.................................................5TH RESPONDENT

JUSTUS NJERU NGIGACHA......................................6TH RESPONDENT

SILAS NJIRU NYAGA...................................................7TH RESPONDENT

NJUE MUCENDU NGICUVA.......................................8TH RESPONDENT

GIBSON NJUE NGIRIGACHA....................................9TH RESPONDENT

JOHN MATI NYAGA....................................................10TH RESPONDENT

JUSTUS NJUKI NYAGA..............................................11TH RESPONDENT

BENJAMIN KITHUMBU KAMBELO.......................12TH RESPONDENT

PHEANAS KAGANE....................................................13TH RESPONDENT

MUTURI PHENES KAGANE.....................................14TH RESPONDENT

TITUS NJERU KAGANE............................................15TH RESPONDENT

NYAGA NGINYIRO....................................................16TH RESPONDENT

EVANS MATHERI IGOGO (Legal representative of

STEPHENE IGOGO MATHERI…..............................17TH RESPONDENT

SAMUEL MUTITU NDUMA........................................18TH RESPONDENT

JOB KIBET T. KIMEY..................................................19TH RESPONDENT

AND

STEPHENE IGOGO MATHERI.........................1ST INTERESTED PARTY

SOSPETER KITHUMBU MURANGIRI............2ND INTERESTED PARTY

KIMUNYE TEA FACTORY COMPANY LTD..3RD INTERESTED PARTY

JUDGEMENT

1. By an originating summons dated 7th March 2007 and amended on 2nd February 2018 brought under the provisions of Order 37 Rules 1, 8 and 11 of the Civil Procedure Rules, Sections 25 and 26 of the Land Registration Act 2012, Section 3A of the Civil Procedure Act (Cap. 21) and all other enabling provisions of the law, the Applicants sought the following orders:

a. That in implementation of the orders made in Judicial Review Misc. Application No. 72 of 2003 and Misc. Application No. 1 of 2004 in the High Court at Embu, this honourable court be pleased to order the Land Registrar to rectify the registers for land parcels numbers Mbeere/Mbita/2088, 2089, 2090, 2094, 2171, 2200, 2204, 2205, 2298, 3772, 3775 and 3777 by cancelling the names of the persons currently registered as proprietors of the said parcels of land and registering the names of new proprietors as specified in the schedule below as proprietors of the said parcels of land.

b. That this honourable court do order the District Land Registrar to rectify the register by cancelling the names stated in the schedule below and registering the names of the persons set out in the schedule below as proprietors of the respective parcels of land and then issuing titles deeds to the said person so registered as proprietors.

c. That this honourable court do order that the title deeds held by the current registered proprietors be dispensed with when registering and issuing title deeds to the new proprietors of the said parcels of land.

SCHEDULE

PARCELS NO. NAME TO BE CANCELLED NEW NAME

A. MBEERE/MBITA/2088 MWIRECA KIARIRWA DAVID WAWERU NJOROGE

B. MBEERE/MBITA/2089 NJOKA KONJI FELISTER KATHI NGANJI

C. MBEERE/MBITA/2090 NJERU NGICUVA DAVID WAWERU NJOROGE

RUNJI

D. MBEERE/MBITA/2094 1. MUGO NYAGA NJERU 1. JACINTA KIURA NJERU

2. JUSTUS NJERU NGIRIGACHA

3. SILAS NJIRU NYAGA

E. MBEERE/MBITA/2171 NJUE MUCENDU NGICUVA AGOSTINO NGARI NJERU

F. MBEERE/MBITA/2200 GIBSON NJUE NGIRIGACHA ERIC NGARI NJERU

G. MBEERE/MBITA/2204 1. JOHN MATI NYAGA FRANCIS NJERU NYAGA

2. JUSTUS NJUKI NYAGA

3. BENJAMIN KITHUMBU

KAMBELO

H. MBEERE/MBITA/2205 1. PHEANES KAGANE FAUSTINO NJERU NJOKA

2. MUTURI PHENES KAGANE

3. TITUS NJERU KAGANE

I. MBEERE/MBITA/2298 NYAGA NGINYIRO AGOSTINO NGARI NJERU

J. MBEERE/MBITA/1989 AND RESULTANT SUB-DIVISIONS

i. 3772 STEPHEN IGOGO MATHERI DAVID WAWERU NJOROGE

ii. 3775 SAMUEL MUTITU NDUMA FAUSTINO NJERU NJOA

iii. 3777 JOB KIBET T. KIMEY CHARLES KINYUA NGARI

2. The said reliefs were being sought on the basis that the current registered owners were registered pursuant to the decision of the District Commissioner (DC) in an appeal to the Minister under section 29 of the Land Adjudication Act (Cap 284). It was further contended that the decision of the DC was later on quashed vide a court order made in Embu High Court Misc. Application No. 72 of 2003 hence the need for rectification of the register.

3. The said originating was supported by an affidavit sworn by Faustino Njeru Njoka on 2nd February 2018 in which he reiterated and expounded upon the grounds set out in the summons. It was contended that the properties the subject of the dispute namely, Title Nos. Mbeere/Mbita/2088, 2089, 2090, 2094, 2171, 2200, 2204, 2205, 2298, 3772, 3775 and 3777 belonged to Mbwe house of Nditi clan of the Mbeere Tribe.

4. The Applicants contended that the said parcels were subject to land adjudication proceedings which culminated into an appeal to the minister under Section 29of theLand Adjudication Act (Cap. 284). The Appeal to the minister was Appeal Case No. 49 of 1997. It was further contended that the minister’s decision was successfully challenged in High Court Misc. Application No. 72 of 2003 and High Court Misc. Application No. 1 of 2004 with the consequence that the award in favour of Ikandi clan was set aside. The Applicants therefore wanted to enjoy the fruits of their judgement.

5. When the said originating summons was listed for directions on 25. 03. 2019 it was directed that the application be canvassed on the basis of affidavits and written submissions only since the questions for decision were essentially matters of law. The 2nd Interested Party sought, and was granted, 30 days to file a replying affidavit to the amended originating summons. The parties were also granted various timelines for filing further affidavits and exchanging written submissions. The matter was then slated for judgement on 26th September 2019.

6. Although the previous advocates for the 2nd Interested Party did not file a replying affidavit to the amended originating summons, there are several previous affidavits on record which dispute the Applicants’ case in this matter. The court shall refer to the replying affidavit sworn by the 2nd Interested Party on 27th May 2013 which appears to directly respond to the claim and deem it as a response to the amended originating summons.

7. In the said replying affidavit, it was contended that the quashing order in High Court Misc. Appl. No. 72 of 2003did not confer any proprietary rights upon the Applicants and that it did not in any way affect the parcels of land already registered. It was further contended that the judgement in the said case did not determine any ownership rights over the suit properties. The same arguments were raised with respect to High Court Misc. Appl. No. 1 of 2004. Finally, it was contended that the originating summons had already been overtaken by events.

8. There is no indication on record of the parties herein having complied with the directions given on 25th March 2019 as to the filing of written submissions on the amended originating summons. At least their submissions were not on record at the time of preparation of the judgement. The court has also noted that some of the Respondents have never entered an appearance to the originating summons despite service.

9. The court has considered the Applicants’ notice of motion, the affidavit in response thereto by the 2nd Interested Party as well as the documents on record in this matter. The court is of the opinion that the following three (3) issues arise for determination:

a) What is the effect of the judgement delivered in High Court Misc. Application No. 72 of 2003?

b) Whether the Applicants are entitled to the reliefs sought in the amended originating summons.

c) Who shall bear the costs of the proceedings.

10. The court has perused the decision of the Hon. Justice Isaac Lenaola J (as he then was) dated 15th December 2004 in Embu High Court Misc. Appl. (JR) No. 72 of 2008. Although the decision is titled as ‘ruling’ it is in essence a judgement since it determined the application for judicial review with finality. The said decision also indicates that by consent of all the concerned parties it was to apply to Embu High Misc. Appln (J.R) No. 1 of 2004.

11. The court has carefully perused the said ruling on the history of the dispute surrounding the various suit properties which were the subject of the two judicial review applications. It would appear that the dispute was between the Applicants’ Nditi clan and the 2nd Interested Party’s Ikandi clan. It would also appear that the dispute went through the entire land adjudication process under the Land Adjudication Act (Cap. 284) culminating into an appeal to the minister under Section 29 of the Land Adjudication.

12. The material on record indicates that the Land Adjudication Officer (LAO) had allowed an objection and awarded the suit properties to the Applicants to share them with their clansmen. At the material time, one Rugano Nthiga was representing Ikandi clan in proceedings before the minister and he appears to have been the Appellant. However, his success before the minister was short-lived as it was overturned by the High Court in the judicial review applications referred to.

13. The court is of the opinion that once the decision of the High Court quashed the decision of the minister on appeal, then the decision of the Land Adjudication Officer was restored. The material on record shows that it was the Land Adjudication Officer who had awarded the Applicants’ clan the suit properties in an objection case. The minister over-turned that decision by awarding the 2nd Interested Party’s clan the suit properties. Ultimately, when the High Court quashed the minister’s decision, the Land Adjudication Officer’s award was automatically restored. The court is unable to agree with the 2nd Interested Party’s contention that the decision of the judicial review court was of no legal consequence and that it do not affect any property rights. The status which obtained prior to the decision of the minister must be sustained.

14. The 2nd issue is whether or not the Applicants are entitled to the reliefs sought in the amended originating summons. The Applicants are simply seeking to enjoy the fruits of their judgement in the two judicial review applications. The court is of the opinion that the judicial review order of certiorari simply restored their property rights which the court found had been improperly taken away by the minister. There is no indication on record that members of Ikandi clan appealed the decision of the High Court in the said proceedings.

15. The 2nd Interested Party has placed some material on record to demonstrate that it has filed a new civil suit being Embu ELC No. 18 of 2019 which somehow seeks to challenge the said High Court decision rendered on 15th December 2004. The court is of the opinion that the only proper avenue for challenging a regular order or decree of a superior court is either through a review or appeal. It cannot be challenged by filing a fresh suit in another court of co-ordinate jurisdiction. The court is thus of the opinion that the Applicants are entitled to enjoy the suit properties as awarded to them by the Land Adjudication Officer. There is no legal justification why they should not be granted the reliefs sought.

16. The 3rd and final issue is on costs of the suit. Although costs of an action are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap. 21). As such, a successful litigant should normally be awarded costs of an action unless, for good reason, the court directs otherwise. See Hussein Janmohamed & Sons Ltd V Twentsche Overseas Trading Co. Ltd [1967] EA 287. The court finds no good reason to deprive the successful litigants of the costs of the action. Accordingly, the Applicants shall be awarded costs of the action.

17. The upshot of the foregoing is that the court finds merit in the originating summons dated 7th March 2007 and amended on 2nd February 2018. The same is accordingly allowed in terms of orders 1A, 2A and 3A thereof. The Applicants are awarded costs of the suit as against the 2nd Interested Party.

18. It is so decided.

JUDGEMENT DATED, SIGNEDand DELIVERED in open court at EMBU this26TH DAY ofSEPTEMBER 2019.

In the presence of Ms. Nzekele holding brief for Mr. Okwaro for the Applicants; Ms. Migwi for the 4th, 6th, 7th, 10th, 11th, 12th & 14th Respondents; Ms. Muriuki holding brief for Mr. Kamunda for the 2nd Interested Party; Mr. Andande holding brief for Karinga for the 3rd Interested Party and in the absence of the rest of the parties.

Court Assistant Mr. Muinde

Y.M. ANGIMA

JUDGE

26. 09. 19