[2019] KEELC 4133 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO.238 0F 2018

HANNAH WANJA NJENGA And

JOSEPH MUCHAI (Suing as administrators

of the Estate of the late PETER KIMARI KAMIRA

alias KIMARI KIMIRA)....................PLAINTIFFS/RESPONDENTS

VERSUS

PETER KIARIE WARUI....................1ST DEFENDANT/OBJECTOR

GEORGE NJANGI KIMANI...........2ND DEFENDANT/OBJECTOR

THE DISTRICT LAND REGISTRAR,

KIAMBU COUNTY...................................................3RD DEFENDANT

FAMILY BANK LIMITED.......................................4TH DEFENDANT

CONSOLIDATED BANK OF KENYA LTD...........5TH DEFENDANT

RULING

The Plaintiffs herein filed this claim against the Defendants and sought for various prayers among them a declaration that the subdivision of LR.No.Ndumberi/Riabai/101 into, LR.No.Ndumberi/Riabai/5335, 5336, 5337and5338 and any other subsequent transfer and transactions therein are null and void.

Simultaneously, the Plaintiffs also filed a Notice of Motion application under Certificate of Urgency and sought for injunctive or restraining orders against the Defendants from dealing in any way with title No.Ndumberi/Riabai/5335,5336,5337 and 5338. The court granted interim orders on the first instance which orders have been extended severally.

In contesting the said Notice of Motion, and the whole suit, the 1stand 2ndDefendants filed aReplying Affidavitsworn byPeter KiarieWarui, the 1stDefendant on11th October 2018together withNotice of Preliminary Objection, wherein the 1stand 2ndDefendant averred that:-

1. That the Application is incurably defective, bad in law and does not lie.

2. That the said application is misconceived, incompetent, defective and bad in law.

3. That the suit herein is Res judicata.

4. That the said application and suit are an abuse of the court process and ought to be dismissed with costs on the basis that the suit herein is essentially an unprocedural appeal against Kiambu Civil Case No.149 of 1989.

The Court directed that the Preliminary Objection be canvassed first by way of written submissions. The Law Firm of Gatitu Wang’oo & Co. Advocatesfor the 1st and 2nd Defendant filed the written submissions on 29th October 2018 and urged the Court to uphold the Preliminary Objection and strike out the entire suit with costs. They relied on various decided cases.

The Law Firm of Mwaniki Gachoka & Co. Advocates filed theirwritten submissions on21st November 2018and urged the Court to dismiss the instantNotice of Preliminary Objectionwith costs.

The Court has considered the instant Notice of PreliminaryObjectionand the rival written submissions and the relevant provisions oflaw and finds that basically the issue for determination are:-

i. Whether the matter is Resjudicata.

ii. Whether the suit was improperly, irregularly filed and whether the same is misconceived and an abuse of the court process.

Before delving into the merit of the Notice of Preliminary Objection, the Court will first determine whether what has been raised amounts to a Preliminary Objection.

A Preliminary Objection was described in the case of Mukisa Biscuits & Co. Ltd.....Vs...West End Distributors Ltd (1969) EA 696to mean-

“….So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”.

Further, it is evident that a Preliminary Objection raises pure points of law and is capable of bringing the matter to an end preliminarily. See the case of Quick Enterprises Ltd...Vs...Kenya Railways Corporation, Kisumu HCCC No.22 of 1999, where the Court held that:-

“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.”

It is also evident that the Preliminary Objection stems from the pleadings, and there should be no instances where the court will have to turn elsewhere to ascertain facts. See the case of Avtar Singh Bhamra & Another…Vs….Oriental Commercial Bank, Kisumu HCCC No.53 of 2004,where the Court held that:-

“A Preliminary Objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.”

The 1st and 2nd Defendants have averred that the suit herein isincurably defective, bad in law and does not lie. Further that the suit ismisconceived, incompetent, defectiveand anabuseof the court process. For the court to determine whether the suit isdefectiveorbad in law, it has to consider the pleadings and does not need to ascertain any facts. Further the issue of whether the suit isbad in law, incompetentandmisconceivedare points of law which objection if upheld, is capable of bringing the suit to an end preliminarily.

Therefore, the Court finds that though the issue of Res judicata sometimes requires ascertaining of facts by having to consider the alleged previous suits, the Court finds that the other points raised by the 1st and 2nd Defendants are pure points of law and therefore qualifies this Notice of Preliminary Objectionto be a Preliminary Objection as envisaged or described in the Mukisa Biscuits Case (supra).

On the merit of the Preliminary Objection, the 1st and 2nd Defendants have averred that the suit herein is Resjudicata. Resjudicata means a ‘thing adjudicated’ as per the Black Law Dictionary, 9th Edition.

Section 7 of the Civil Procedure Act provides as follows:-

“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 whom 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 finallydecided by such court”.

The 1st and 2nd Defendants have alleged that the issues raised hereinwere determined inKiambu Civil Case No.149 of 1989, wherein the Court held thatLR.No.Ndumberi/Riabai/101,be divided and shared equally betweenKimari KimiraandKimani Kimira. Further that issues raised herein were also raided inSuccession Cause No.282 of 2018,wherein the Court delt with the Estate ofKimari Kimira.

However, the Plaintiffs have submitted that the issues raised in Kiambu Civil Case No.149 of 1989, are totally different with the issues herein. Whereas Kiambu Civil Case NO.149 of 1989, delt with who was entitled to the land parcel No.Ndumberi/Riabai/101 and to what size of the suit, the suit herein deals with illegal and fraudulent transfer of Kamira Kimira’s (deceased) portion of land after the said equally sharingas directed by the court inCivil Suit No.149 of 1989.

The Court has considered the pleadings herein and it is indeed correct that the Plaintiffs are alleging that the share that was meant to be for Kamira Kimira was distributed to persons who were not beneficiaries of his estate. The issues pleaded by Plaintiffs are issues of fraud. Though touching on the same suit property, the issues herein are different from the issues raised on Kiambu Civil suit No.149 of 1989.

The other issues raised by the 1st and 2nd Defendants are that the suit is an abuse of the court process, incompetent, defective and misconceived. Apart from the issue of abuse of the court process, the Objectors did not expound on the other points.

The Objectors have alleged that the Plaintiffs have abused the courtprocess because the issues herein had been delt with in other suits that isKiambu Civil Case No.149 of 1989andSuccession Cause No.282 of 2018.

Therefore by bringing this matter, that amounts to multiplicity of actions and therefore an abuse of the court process. However, as the court pointed out earlier, the issues raised herein touches on fraud and illegal transfer of a share of deceased parcel of land to non-beneficiaries. Therefore, the Court finds that these are new issues which require a proper determination by the court.

For the above reasons, the Court finds that the Notice ofPreliminary Objectionhereinis not merited. Thesame is dismissed entirely with costs to the Plaintiffs herein.

It is so ordered.

Dated, Signed and Delivered at Thika this 18th day ofMarch 2019.

L. GACHERU

JUDGE

18/3/2019

In the presence of

M/S Mugi holding brief for Mr. Gachoka for Plaintiffs/Respondents

M/S Mokaya holding brief for Mr. Gatitu for 1st & 2nd Defendants/Objectors

No appearance for 3rd Defendant

No appearance for 4th Defendant

Lucy - Court Assistant

L. GACHERU

JUDGE

18/3/2019