[2021] KEHC 3929 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA MOMBASA

FAMILY DIVISION

MATRIMONIAL PROPERTY CAUSE NO.E004 OF 2021 (O.S)

IN THE MATTER OF THE SECTIONS 2,6,7,9 & 12 MATRIMONIAL PROPERTY ACT

AND

IN THE MATTER OF THE SECTIONS 104,105 AND 106 OF THE LAND ACT

AND

IN THE MATTER OF L.R NUMBER MOMBASA/BLOCK XLVI/34 APARTMENT NO.F.5

BETWEEN

HAMIDA SADIQ VALOMOHAMED

(SUING AS THE PERSONAL

REPRESENTATIVE OF THE ESTATE OF

SHABBIER SIDIK OMAR (DECEASED).........PLAINTIFF/RESPONDENT

VERSUS

GULF AFRICAN BANK LIMITED

ROSEMARY NJERI WAWERU T/A

THAARA AUCTIONEERS.............................DEFENDANTS/APPLICANTS

RULING

1. One Shabbir Sidik Omar the late husband to Hamida Sadiq Valomohamed the plaintiff/ respondent herein died on 14th May 2018. Prior to the death of Shabbir (hereafter the deceased), he had taken a loan facility of Kshs 12,000,000 from Gulf African Bank (herein the 1st defendant/1st applicant) for the purchase of Apartment Number F5 erected on title number Mombasa/XLVI/34. As security to the said loan, the deceased executed a charge with the first defendant on 4th November, 2013 thus depositing the title deed to the said property with the 1st defendant. The said charge was registered against the title at the lands registry on 23rd November 2013.

2. Unfortunately, the deceased died before repaying the loan in full thus attracting exercise of statutory right of sale by the 1st defendant/1st applicant in order to recover the outstanding loan then amounting to Kshs 19,165,073. By a letter dated 21st January 2021, Rose Mary Thaara trading in the name and style of THAARA AUCTIONEERS (the 2nd defendant/2nd applicant herein), acting on instructions from the 1st defendant/1st applicant issued a notice of sale of the aforesaid property by a public auction. The said notice was allegedly served upon the decease’s son who in turn informed the mother the plaintiff herein. Determined to secure the property from auction, the plaintiff/respondent obtained a limited grant of letters of administration Ad litem on 11th March 2021 for purposes of suing.

3. Consequently, the plaintiff moved to this court on 23rd March 2021 through an originating summons dated 17th March 2021 seeking orders as follows; a declaration that, property known as Mombasa BlockXLVI/34 apartment number F.5 is matrimonial property; a declaration that the plaintiff made contribution towards the acquisition of the said property; a declaration that while the deceased was repaying the loan used to buy the property, the plaintiff was busy looking after their children hence her non-monetary contribution; a declaration that the plaintiff is entitled to equal share of the property in question and, award of costs of the suit.

4. Contemporaneously filed with the originating summons is a notice of motion seeking a temporary injunction against any dealings including the sale of the said property. An exparte order was made on 23rd March 2021 thus preserving the property pending interpartes hearing on 7th April 2021. In response, the respondents filed a replying affidavit sworn on 29th March 2021by Lawi Sato the 1st defendant’s senior legal counsel opposing the application. At the same time, the defendants/applicants filed a notice of motion dated 29th March 2021 supported by an affidavit deponed by of LAWI SATO on the same date seeking orders as follows;

a) The plaintiff’s suit be struck out for disclosing no reasonable cause of action known in law and being otherwise an abuse of court process.

b) The costs of this application and the suit be borne by the plaintiff.

5. When the matter came for interpartes hearing, parties agreed to dispose the application dated 29th March 2021 first. Consequently, the application for injunction dated 23rd March 2021 was held in abeyance pending the outcome of the application of 29th March 2021. The plaintiff/respondent was given time to file a response to the said application. Parties agreed to file submissions in disposing the application. Consequently, the plaintiff/ respondent filed a replying affidavit sworn on 16th April 2021 hence opposing the application.

Application dated 29th March 2021

6. The application above stated is based on the grounds set out on the face of it and amplified by the averments contained in the supporting affidavit in which the applicants averred that; the plaintiff is professedly suing not in her own right but on behalf of the Estate of Shabbir Sidik Omar (deceased) and that being the case ,the estate of Shabbir Sidik Omar(Deceased) cannot maintain a claim for division of matrimonial property on behalf of the plaintiff; the effect of the suit is that she is a plaintiff pursuing her interest over part of the Estate of Shabbar Sidik Omar (Deceased) and also a defendant being the legal representative of the Estate of Shabbir Sidik Omar against whom such demands must be directed; even assuming there was a proper suit ,there can be no reasonable cause of action against a bank such as the 1st defendant in a claim for division of matrimonial property; the 2nd defendant is an agent of a disclosed principal hence there can be no reasonable cause of action against an agent of a disclosed principal thus the suit against the 2nd defendant does not lie; it is equally an abuse of the court process for the plaintiff to allege that she never consented to the creation of the charge yet she did so on 15th October 2013; it is in the interest of justice and fairness that the suit be struck out in limine so that it does not undeservingly consume limited judicial resources.

7. The plaintiff/respondent in response filed a replying affidavit sworn on 16th April, 2021 stating that; the entire application is malicious, vexatious, frivolous, scandalous and an epitome of abuse of the court process; it is calculated at delaying the hearing and determination of the main suit as all the issues can be canvassed through the pleadings filed by the plaintiff /respondent and, that the law of succession section 45(1) is very clear in relation to the dealings of property of a deceased person.

8. It was further deposed that she is not seeking a claim for division of matrimonial property but recognition of her rights which should be protected under the matrimonial property rules as a wife of the deceased in view of her contribution to the acquisition of the property.

9. She also deponed that the applicant is being mischievous by stating that she should direct her demands to the deceased. That in the alternative, the applicants should also direct their demands to the deceased as they have not followed the laid down procedure considering that the applicants cannot just wake up one day and serve a dead person informing him that they were going to sell his property.

10. She further deposed that the 2nd applicant has actual authority as an agent of the 1st applicant for reasons that the orders sought in the main pleadings cannot operate in a vacuum as it affects both parties in this case the 1st and the 2nd applicants. It was stated that the issues raised cannot be canvassed through an application as the evidence produced is hearsay.

11. The plaintiff /respondent further averred that the 1st applicant’s recourse if any, is to follow the laid down procedure in the law of succession Act chapter 160 which provides on how to deal with the property of a deceased person. That even if no grant had been taken, the applicants had recourse in the provisions of rule 21 of the probate and administration rules which is very clear. She urged the court to dismiss the applicants’ application with costs.

12. As stated herein above, the application was canvased by way of written submissions. Through the firm of Muriu Mungai advocates, the applicants filed their written submissions dated 23rd april,2021 submitting on two issues namely:

1. Whether the suit discloses a reasonable cause of action.

2. Whether the 2nd defendant can be sued where there is a disclosed principal

13. On the first issue, the applicants submitted that they are aware that courts are minded in fidelity to the constitution to hear disputes on merit and that they rarely and sparingly strike out suits in limine. That the power to strike out a suit is expressly donated by statute and it must be used when plainly the suit is hopeless. To buttress this position, reliance was placed on the holding in the case of Housing Finance Company of kenya Limited vs Faith Kimeriah &another [1998]eKLRwhere the court further stated that issues between spouses have nothing to do with a chargee.

14. They further submitted that the respondent’s case has nothing to do with the 1st applicant and that the respondent is entitled to take out proceedings under the then applicable Married Women’s Property Act 1882 or the now applicable Matrimonial Property Act 2013 against the legal representative of the deceased’s estate to which unfortunately she is the one. They further contended that they are unable to find any legal basis for suggesting, as the plaintiff does, that her husband’s death bestowed on her a cause of action against the 1st defendant which can be enforced in a matrimonial cause such as this one.

15. Regarding the second issue that orders cannot issue against an agent when the principal is disclosed, the applicants relied on the holding in the case of Victor Mabachi &another vs Nurtun Bates Limited [2013]eKLRin which the court held that, where the principal is disclosed, an agent cannot be sued. Counsel submitted that the argument that the 2nd applicant was properly sued to safeguard orders issued against the 1st applicant is misplaced as impleading the agent in the suit where the principal is disclosed is irregular and lacks merit.

16. On her part, the respondent through her advocate filed written submissions dated 29th April, 2021 submitting that; the application is malicious, vexatious, frivolous and an abuse of the court process; the suit is only a ploy to derail the court process as the issues which they are raising can be canvassed during the main hearing of the suit whereby they will have a chance to ventilate on their case.

17. The respondent further submitted that her rights have been infringed by the applicants mischievously informing her to go and get her rights from her late husband yet she contributed towards the purchase of the property. To support the argument that she is entitled to a share in the subject property, the court was referred to the holding in the case of EMN –vs- NM High Court Civil Case No.14 of 2013 at Embu (2018)eKLR where the court recognised non-monetary contribution towards acquisition of matrimonial property as a basis for a spouse to justify contribution hence entitled to a share in such property.

18. It was further contended that the orders sought cannot operate in vacuum as it affects both parties. Regarding the issue of “principal agent relationship” it was opined that, it was the principal in this case the 1st applicant who legally appointed the agent the 2nd applicant to make decisions and take actions on its behalf by advertising the sale of the property hence the issue of a disclosed principal does not apply as it is an express actual authority to which the agent is liable to third parties. In attempt to justify this argument reference was made in respect to the case of Civil Suit No.517 of 2014 Nairobi between Lucy Nungari Ngigi & 4 others –vs –National Bank of kenya Limited & another, and Civil Case No.685 of 2010 between Heifer Project International vs Forest City Export Services Limited & another (2017)eKLRin which both courts talked of the privity of contract and third parties’ liability in case of breach of contract.

Analysis and determination

19. I have considered the application herein, responses thereof and rival submissions by both counsel. Therefore, Key issues for determination can be discerned as follows:

(a)Whether the suit discloses a reasonable cause of action.

(b)Whether the 2nd applicant is an agent of a disclosed principal.

(c)Whether the application is malicious, vexatious, frivolous and an abuse of the court process.

20. This court’s authority to strike out the suit for non-disclosure of reasonable cause of action has been summoned pursuant to Order 2 Rule 15 (1) of Civil Procedure Rules, 2010 which provides as follows;

“At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—

(a) it discloses no reasonable cause of action or defence in law; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) no evidence shall be admissible on an application under sub-rule (1)(a) but the application shall state concisely the grounds on which it is made.

(3) so far as applicable this rule shall apply to an originating summons and a petition”

21. From the wording of the above provision, it is clear that the court is bestowed with wide discretionary powers to strike out a suit which on the face of it is hopeless and not worthy entertaining in any event. The word reasonable is relative and therefore depends and varies from the facts of each individual case and the judgment of the presiding court. In the case of D.T Dobie and Co.(Kenya)Ltd v Muchina(1982)KLRthe court of appeal defined the word “reasonable cause of action” to mean;

“An action with some chance of success when allegations in the plaint are considered. A cause of action will not be considered reasonable if it does not state such facts as to support claim prayer…”

22. Therefore, a reasonable cause of action must be discernible from the pleadings presented before court and so persuasive that it raises sufficient cause for the trial court to seek further interrogation or proof by way of adduction of evidence or substantiation. If a suit is manifestly frivolous or hopeless when assessed from the legal perspective or lens, then, a court has no business wasting its time in entertaining if from the word go it is bound to fail anyway. However, I am fully aware that the legal tool of striking out a suit on failure to disclose a reasonable cause of action must be applied sparingly and with extreme caution so as not to arbitrarily lock out genuine consumers of justice from accessing justice. See Crescent Construction Co.Ltd v Delphis Bank Limited (2007) eKLRwhere the court of appeal emphasized that in exercise of court’s discretion to strike out a suit for not disclosing reasonable cause of action, it must act with extreme caution not to shut the door of justice to a litigant without giving him or her a chance to be heard.

23. Similar position was echoed in the case of Lindon Nicholas Otieno v Dale Bolton & another [2020]eKLRwhere the court stated that,

“the court must at all times be cognisant of the fact that judicial time is precious and must not be wasted in engaging itself in academic exercises by hearing cases in a full trial where it was plain and obvious that a plaint disclosed no reasonable cause of action or defence in law, where a plaint was scandalous, frivolous, vexatious, where a plaint may prejudice, embarrass or delay the full trial of the action or where the plaint was otherwise an abuse of the court process”

24. Further, In the case ofGrace N Karianjahi vs Dr Simon Kanyi Mbuthi [2002] eKLR,it was also held as follows;

“…the Plaint can also be frivolous, if it has no substance, it is fanciful or that the party is simply trifling with the Court or wasting the Courts time. The Pleading is also vexatious if it has no foundation in law, it is filed for the mere purpose of annoying the other party; it is leading to no possible good and has no chance at all of succeeding. On the other hand, pleadings are otherwise an abuse of the court process when they are filed in court simply to waste its time or when they are worthless or to delay the due process of the law”.

25. In the case ofEdward Kings Onyancha Maina t/a Matra International Associates v ChinaJiangsu Corporation & 8 others (2020)eKLR the court had this to say;

“In the same breathe, a court must exercise restraint and proceed very cautiously when it has been asked by a party to strike out pleadings before a matter has proceeded for full trial. Indeed, striking out pleadings before hearing of a matter is a draconian step and must be used sparingly and in the clearest of the cases as was held in the case of D.T. Dobie Co Ltd vs Muchina [1982] KLR D.T. Dobie and in the case of Geminia Insurance Co Limited vs Kennedy Otieno Onyango [2005] eKLR where Musinga J (as he then was) held as follows;

“It is trite law that striking out pleadings is a draconian step which ought to be employed in the clearest of cases and particularly where it is evident that the suit is beyond redemption.”

26. In the case of Elijah Sikona & another vs Mara Conservancy & 5 others [2013] eKLR,it was held as follows;

“There are well established principles which guide the court in exercise of its discretion under these rules. Striking out is a Jurisdiction which must be exercised sparingly and in clear and obvious cases. Unless the matter is plain and obvious, a party to civil litigation is not to be deprived of his right to have his suit determined in a full trial. The court ought to act cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court”.

27. Am also guided by the holding in the case of Alumark Investments Limited v Tom Otieno Anyango & 4 others [2018] eKLRwhere the court stated that,

“It is settled law that the court’s power to strike out pleadings is to be exercised sparingly and cautiously, because the court exercises the power without being fully informed on the merits of the case through discovery and oral evidence...”

28. Equally, inKivanga Estates Limited v National Bank of Kenya Limited [2017] eKLRthe court held that;

“A pleading or an action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless or offensive and tends to cause the opposite party unnecessary anxiety, trouble or expenses. A pleading which tends to embarrass or delay fair trial is a pleading which is ambiguous or unintelligible or which states immaterial matters and raises irrelevant issues which may involve expenses which will prejudice the fair trial of the action?”

29. From the above case law, it is clear that the power to strike out a suit or pleadings ought to be exercised judiciously and with caution so as not to drive a party away from the seat of justice. I have considered the suit in question and the prayers sought. From the pleadings, it is undoubtedly clear that the plaintiff is seeking declaration of her beneficial interest on the property she refers to as matrimonial property. In my view, suits filed under the platform of Matrimonial Property Act of 2013 must be between spouses. The defendants cannot be enjoined in a suit seeking determination of division of matrimonial property under section 7 nor declaratory rights under Section 17 of the Matrimonial Property Act 2013.

30. For the respondent to bring this suit against the applicants who are not her spouse is untenable. The applicants have nothing to do with contribution of spouses towards acquisition of matrimonial property. In any event, the property in question was purchased out of a loan now being sought to be recovered through the sale of security. The 1st applicant’s interest is realization of their money through the sale of the security deposited. To drag them to division of matrimonial property is to seek unachievable orders.

31. By all means family court is not the appropriate forum to challenge sale of the property in question. The only recourse the plaintiff has is to challenge the same in an ordinary civil suit before a court with jurisdiction to determine the right of statutory sale of a security. It is in that forum that the 1st applicant will have a chance to explain whether they have a legal right to execute recovery of their loan without involving the deceased’s legal representative.

32. I am in agreement with the applicants’ submission that the suit does not disclose any reasonable cause of action against them and therefore a frivolous suit which even if allowed to proceed will not see the light of the day hence a waste of judicial time. Courts should not condone suits filed with no clear focus and intended to frustrate another party to achieve an ill motive.

33. On whether the 2nd defendant was an agent of a disclosed principal and therefore ought not to have been sued, I will seek guidance in the holding in the case of Simon Gichuru Ngomonge t/a Dollar Auctioneers v William Sagini Oribu [2021] eKLR where it was the stated that,

“in view of the foregoing, it is very clear that in selling the suit vehicle, the appellant acted as an agent of a disclosed principal who was identified as Wonderful International ‘K’ Limited. As reiterated by the Court of Appeal in Victor Mabachi & Another V Nurtun Bates Limited, [2013] eKLR, an agent for a disclosed principal should not be sued for anything done in execution of his principal’s instructions. In making this finding, the Court of Appeal cited with approval its earlier holding in Anthony Francis Wareheim T/A Wareheim & 2 Others V Kenya Post Office Savings Bank,Civil Application Nos. NAI 5 & 48 of 2002, wherein it stated thus:

“It was also prima facie imperative that the court should have dismissed the respondent’s claim against the second and third appellants for they were impleaded as agents of a disclosed principal contrary to the clear principle of common law that where the principal is disclosed, the agent is not to be sued. Furthermore, the court having found on the evidence that the second and third appellants were principals in their own right and not agents of the first appellant in the transaction giving rise to the suit, it should have dismissed the suit against the first appellant who had been sued as the principal.”

34. Similar position was held in Presbeta Investment Limited & another v National Bank of Kenya & 2 others [2016]eKLR wherethe court stated that;

“the 3rd Defendant contends that in the intended public auction, it was acting as an agent of the 1st Defendant who is a disclosed principal and therefore it ought not to have been enjoined in this case as the cause of action only lies as against the principal. As I seek to address this issue, I am guided by the case of Khunaif Trading Company Limited v Equity Bank Limited & another [2015] eKLR where an auctioneer was sued yet the auctioneer was acting on the instructions of a known bank and Kasango, J. held as follows:

“Defendant sought the striking out of the 2nd Defendant from this case on the ground that its inclusion breached the principle of Law that an agent cannot be sued where there is a disclosed principal. Defendant on that ground relied on the case of ANTHONY FRANCIS WAREHEIM T/A WAREHEIM & 2 OTHERS –Vs- KENYA POST OFFICE SAVING BANK, CIVIL APPLICATION NO. NAI 5 & 48 OF 2008where it was held-

“It was also prima facie imperative that the Court should have dismissed the Respondent’s claim against the second and third Appellants for they were impleaded as agents of a disclosed principal contrary to the clear principle of common law that where the principal is disclosed, the agent is not to be sued.”

35. Based on the above case law, the joinder of the second applicant was not necessary where the principal is disclosed. All that the second applicant needed was to be served with a court order issued against the 1st applicant stopping the sale. To sue the second applicant was ill advised with the consequence of attracting unnecessary costs against the respondent. However, this common law principle that where a principal is disclosed an agent should not be sued can be read together with Order 1 rule 9 of the civil procedure rules which provides that a suit shall not be defeated on account of misjoinder alone. In view of that provision, I do not find the second ground sufficient on its own to strike out a suit. It can however be applied to dismiss the suit against the 2nd applicant after full hearing.

36. Having held that the there is no cause of action against the respondents, I am inclined to dismiss the suit against the defendants /applicants. With regard to costs, it is trite that costs follow the event unless there are good reasons not to award. In this case, I have no reason not to award. Accordingly, I do hereby award costs of the suit to the defendants/ applicants.

DATED, SIGNED AND DELIVERED IN MOMBASA ON THIS 31ST DAY OF AUGUST 2021

J.N.ONYIEGO

JUDGE