[2020] KEELC 2072 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT EMBU

E.L.C. CASE NO. 347 OF 2015

HUMPHREY IRUNGU MACHARIA.........................................PLAINTIFF

VERSUS

NGARI KIRINGA..............................................................1ST DEFENDANT

MINISTER FOR LANDS.................................................2ND DEFENDANT

LAND REGISTRAR MBEERE DISTRICT...................3RD DEFENDANT

JUDGEMENT

A. Introduction

1. By a plaint dated 9th November 2015 the Plaintiff sought the following reliefs against the Defendants:

a) A declaration that the 2nd Defendant’s decision is null and void as the same infringed on the Plaintiff’s right to property.

b) A declaration that the Plaintiff is the absolute owner of land parcel No. Mbeere/Kirima/724.

c) A declaration that the Plaintiff is entitled to a permanent injunction against the 1st Defendant, his agents and members of his family from interring the remains of Christopher M’Tetu on land parcel No. Mbeere/Kirima/724.

d) Costs of the suit.

B. The Plaintiff’s case

2. The Plaintiff pleaded that he was the registered proprietor of Title No. Mbeere/Kirima/724 (the suit property) which he claimed to have purchased from the 1st Defendant’s late father Christopher Nyaga M’tetu (the deceased). The Plaintiff’s grievances were twofold. First, that the 1st Defendant together with his family members attempted to bury the body of the deceased on the suit property. Second, that the 2nd Defendant had wrongfully awarded the family of the deceased 4 acres out of the suit property in Minister’s Land Appeal Case No. 1775 of 1986.

C. The 1st Defendant’s defence

3. By a written statement of defence dated 28th January 2016 the 1st Defendant denied that the Plaintiff was the owner of the entire suit property. He pleaded that Minister’s Land Appeal Case No. 1775 of 1986 (the appeal) was heard and concluded pursuant to a court order made in Embu CMCC No. 186 of 2015 and that the Plaintiff did not challenge that court order nor did he challenge the Minister’s decision through the laid down process.

4. The 1st Defendant further pleaded that the instant suit was an appeal against the Minister’s decision through the back door hence he considered the suit as being res judicata and an abuse of the court process. He, therefore, urged the court to dismiss the Plaintiff’s suit with costs.

D. The 2nd, 3rd, & 4th Defendants’ response

5. The Attorney General appeared for the 2nd, 3rd & 4th Defendants but did not file a defence to the action. The record shows that the Attorney General filed a notice of preliminary objection dated 15th November 2019. It was contended that the suit against the 2nd, 3rd & 4th Defendants had abated for want of proper service under Order 5 Rules 1 & 2 of the Civil Procedure Rules since they were served on 30th July 2019; that the suit as drawn did not disclose any reasonable cause of action; that the reliefs sought were incapable of being granted; and that the suit was based on conjecture, ill-will and malice. The court was consequently urged to dismiss the suit with costs.

E. Summary of evidence at the trial

a) The Plaintiff’s evidence

6. When the suit was listed for hearing on 29th January 2020, the Attorney General requested the court to hear and determine the preliminary objection before the suit could be heard. The court, instead, directed that the said preliminary objection be determined at the trial together with the main suit.

7. The Plaintiff testified as the sole witness in support of his case. He adopted his witness statement dated 9th November 2015 as his evidence-in-chief. He also produced the documents listed in his list of documents as exhibits P1-P5 respectively. The gist of the Plaintiff’s evidence was that he was aggrieved by the decision of the 2nd Defendant in the appeal. He stated that he had bought the entire suit property from the deceased hence the 2nd Defendant was wrong in awarding the family of the deceased 4 acres out of the suit property.

8. During cross-examination by Mr. Chris Siro for the Attorney General, the Plaintiff conceded that although the suit was filed in 2015, the Attorney General’s office was only served on 30th July 2019.

b) The 1st Defendant’s evidence

9. The 1st Defendant testified on his own behalf as the sole witness. He adopted his witness statement dated 20th June 2017 as his evidence-in-chief. He also produced the documents in his list of documents as exhibits D1-D4 respectively. The gist of his evidence was that the Plaintiff was heard during the appeal. He further stated that the suit property was sub-divided into parcel Nos. 4959 and 4960 with the deceased’s family taking 4959 whilst the Plaintiff remained with parcel 4960.

10. It was the 1st Defendant’s case that it was his mother, Tabitha Wambui, who was in occupation of parcel 4959 and that he had settled on his own land elsewhere.

F. The 2nd, 3rd & 4th Defendants’ evidence

11. The Attorney General did not tender any evidence at the trial hence the 2nd, 3rd and 4th Defendants’ cases were closed without any evidence being called.

G. Directions on submissions

12. Upon conclusion of the trial on 29th January 2020 the Plaintiff was given 30 days to file his written submissions whereas the Defendants were given 30 days upon the lapse of the Plaintiff’s period to file theirs. The record shows that the Plaintiff filed his submissions on 15th April 2020 whereas the 1st Defendant filed his on 11th March 2020. The Attorney General had not filed any submissions by the time of preparation of the judgement.

H. The issues for determination

13. The court has noted that the parties did not file an agreed statement of issues for determination. The Plaintiff filed his own version of 4 issues for determination while the 1st Defendant filed a list of 10 issues. The Attorney General did not file any issues for determination apart from the notice of preliminary objection dated 15th November 2019. In the premises, the court shall frame the issues for determination as provided for in law.

14. Under Order 15 Rule 2 of the Civil Procedure Rules, the court may frame issues from any of the following:

a) The allegations contained in the pleadings.

b) The contents of documents produced by the parties.

c) The statements made on oath by or on behalf of the parties.

15. The court has considered the pleadings, documents, and evidence on record in this matter. The court is of the opinion that the following issues arise for determination in this suit:

a) Whether the suit against the 2nd, 3rd & 4th Defendants is bad in law and incompetent for want of proper service of summons.

b) Whether the 2nd Defendant’s decision in Minister’s Land Appeal Case No. 1775 of 1986 was null and void.

c) Whether the instant suit is res judicata and an abuse of the court process.

d) Whether the Plaintiff is entitled to the reliefs sought in the plaint.

e) Who shall bear the costs of the suit.

I. Analysis and determinations

16. The court has considered the Attorney General’s objection on the competency of the suit against the 2nd, 3rd, & 4th Defendants on account of lack of proper service under Order 5 of the Civil Procedure Rules. That is the only point amongst the several listed in the notice of preliminary objection dated 15th November 2019 which was pursued at the hearing hereof. The rest of the preliminary objections are, therefore, deemed to have been abandoned since they were not pursued even through written submissions.

17. The court has noted that the Plaintiff did not submit on the issue of service of the summons and plaint upon the Attorney General. At the trial, however, the Plaintiff admitted during cross-examination by Mr. Siro for the Attorney General that the suit papers were served on 30th July 2019. The court has perused the entire material on record in a bid to establish when summons to enter appearance were extracted; when they were collected for service; and when they were served upon the Defendants.

18. There is absolutely no material on record to indicate when the summons were extracted. There is no minute indicating when they were collected and there is no affidavit of service indicating that the 2nd, 3rd & 4th Defendants were served at any time prior to 30th July 2019 i.e. about four years after the filing of the suit. The Plaintiff himself conceded at the trial that service of the plaint was effected on 30th July 2019.

19. The legal provisions on service of summons are contained in Order 5 Rule 1of theCivil Procedure Rules which stipulate as follows:

“1. (1) When a suit has been filed a summons shall issue to the defendant ordering him to appear within the time specified therein.

(2) Every summons shall be signed by the judge or an officer appointed by the judge and shall be sealed with the seal of the court without delay, and in any event not more than thirty days from the date of filing suit.

(3) Every summons shall be accompanied by a copy of the plaint.

(4) The time for appearance shall be fixed with reference to the place of residence of the defendant so as to allow him sufficient time to appear: Provided that the time for appearance shall not be less than ten days.

(5) Every summons shall be prepared by the plaintiff or his advocate and filed with the plaint to be signed in accordance with subrule (2) of this rule.

(6) Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue or notification, whichever is later, failing which the suit shall abate.”(Emphasis added)

20. There is no doubt that the suit herein was filed on 9th November 2015. There is no doubt that the plaint was served upon the Attorney General for the 2nd, 3rd & 4th Defendants on 30th July 2019. Whether or not it was accompanied by a copy of the summons is not altogether clear. There is no indication on record to show that the Plaintiff ever applied for extension of the validity of the original summons (if any) and whether such extension was ever granted under Order 5 Rule 2 of the Civil Procedure Rules. Whichever way one looks at it, the court is of the view that no or no valid summons were ever served upon the Attorney General for about 4 years from the date of filing suit. The consequence of this is that there is no valid suit against the 2nd, 3rd & 4th Defendants and as such the Attorney General’s first preliminary objection is upheld.

21. The court has considered the evidence, documents and submissions on record on the 2nd issue. Although the plaint had very scanty particulars on why the Plaintiff considered the Minister’s decision in the appeal as null and void, it would appear from the documents on record, including his written submissions, that his grievances were as follows: First, that the Minister had no jurisdiction to entertain the appeal. Second, that the decision was a violation of his right to property under Article 40 of the Constitution of Kenya. In his written submissions, the Plaintiff’s advocate submitted that:

a) The deceased had abandoned the appeal before the Minister for about 19 years during which the Plaintiff was registered as proprietor and issued with a title deed.

b) The Minister had no authority to make a decision which had the effect of cancelling the Plaintiff’s title.

c) The Minister was biased against the Plaintiff.

d) The Minister failed to consider the Plaintiff’s evidence and thus arrived at an erroneous decision.

e) The Minister took into account irrelevant considerations in making his decision.

22. The court has noted from the Plaintiff’s witness statement which he adopted as his evidence-in-chief that there were previous objection proceedings before the Land Adjudication Officer in which the Plaintiff apparently succeeded. The Plaintiff was, therefore, aggrieved that the Minister had failed to abide by the decision made in the objection proceedings. The Plaintiff stated in his witness statement thus:

“THAT the parties pursued the pending appeal before the Minister.

THAT on 26th October 2015 the 2nd Defendant herein delivered a decision in Minister Appeal Case No. 1775 of 1986 whereby he ordered that the 1st Defendant be given 4 acres out of my land parcel No. Mbeere/Kirima/724.

THAT the said decision by the Minister (sic) there were no reasons as to why he differed with the earlier findings in objection No. 232 of 1983. ”(Emphasis added)

23. The 1st Defendant supported the decision of the Minister and submitted that the Plaintiff was accorded a hearing during the appeal hence he could not claim that his right to property was violated without due process. The 1st Defendant further submitted that the Minister’s decision was never challenged through judicial review proceedings as required by law.

24. The court has noted that the Plaintiff provided very scanty material in this suit relating to the genesis of the land dispute he had with the deceased. It is, however, clear from a previous suit i.e. Embu CMCC No. 186 of 2015 Humphrey Irungu Macharia V Tabitha Wambui Nyaga that the dispute dates back to 1980. The judgement in that case indicates that the Plaintiff (through his brother) bought the suit property from the deceased vide two sale agreements dated 30th July 1980 and 11th August 1980. There followed objection proceedings by the deceased in objection Case Nos. 232 and 45 both of 1983. The Land Adjudication Officer decided the said objections in favour of the Plaintiff whereupon a son of the deceased filed the appeal.

25. The material on record further indicates that by the time Embu CMCC No. 186 of 2015 came up for full hearing the appeal was still pending hence the court directed in its judgement that the appeal be placed before the Minister for hearing and determination within 14 days. It is pursuant to that order that the appeal was heard and concluded vide the Minister’s decision of 26th October 2015.

26. There is no material on record to indicate that the appeal had been abandoned. There is no material on record to indicate that the Plaintiff ever objected to the hearing of the appeal on account of jurisdiction and there is no evidence on record to demonstrate that the Plaintiff ever challenged the judgement in Embu CMCC No. 186 of 2015 which directed expeditious hearing and disposal of the appeal. Additionally, there is no indication that the Plaintiff ever challenged the decision of the Minister through the supervisory jurisdiction of the superior courts. All the Plaintiff did was to file a new suit seeking fresh determination of the ownership dispute with respect of the suit property.

27. The court is aware that even though judicial review proceedings may have been the most appropriate way to challenge the Minister’s decision in the appeal, the Plaintiff still had the option of filing a declaratory suit. See Nicholas Njeru Vs Attorney General & Others Nyeri Civil Appeal No. 110 of 2011 [2013] eKLR and Johana Buti V Walter Omariba & Others Kisumia Civil Appeal No. 182 of 2006 [2011] eKLR whereby the Court of Appeal held that a declaratory suit might still be an option. The Plaintiff must, however, prove the allegations pleaded in the plaint with concrete evidence and demonstrate that he is entitled to the declaration(s) sought.

28. It is apparent from the material on record that the Plaintiff bought the suit property from the deceased in 1980 before the conclusion of the land adjudication process. It is also apparent that there arose some dispute with respect to the suit property which was the subject of objection proceedings and subsequently the appeal to the Minister under Section 29 of the Land Adjudication Act (Cap. 284). It is also evident from the record that the Minister made his decision in the appeal on 26th October 2015 which the Plaintiff now contends was null and void for lack of jurisdiction, bias and other factors.

29. Section 29 of the Land Adjudication Act stipulates as follows:

“(1) Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by—

(a) delivering to the Minister an appeal in writing specifying the grounds of appeal; and

(b) sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.

(2) The Minister shall cause copies of the order to be sent to the Director of Land Adjudication and to the Chief Land Registrar.

(3) When the appeals have been determined, the Director of Land Adjudication shall—

(a) alter the duplicate adjudication register to conform with the determinations; and

(b) certify on the duplicate adjudication register that it has become final in all respects, and send details of the alterations and a copy of the certificate to the Chief Land Registrar, who shall alter the adjudication register accordingly.” (emphasis added)

30. The court is unable to agree with the Plaintiff that the Minister had no jurisdiction under the said Act to entertain and determine the appeal. The power to entertain such appeals is expressly conferred by statute and there is no indication on record that any objection on jurisdiction was taken by the Plaintiff during the hearing of the appeal. The mere fact that the appeal took 19 years or more to be heard and concluded could not take away the jurisdiction of the Minister to determine the appeal. Although it is desirable that such appeals be heard expeditiously, there is no time limit prescribed under the Act for the conclusion of the appeals.

31. The contention that the appeal was filed out of time was not pleaded in the plaint. Even if it had been pleaded, it could not avail the Plaintiff because first, he ought to have taken up such objection before the Minister. Second, the Plaintiff did not demonstrate what prejudice, if any, he suffered as a result of the alleged lateness in filing the appeal. See Watuku Mutsiemi & Another V Republic & 5 Others [2018] eKLR.

32. The Plaintiff submitted that the Minister was deprived of jurisdiction to determine the appeal because a title deed had somehow been issued to the Plaintiff by the time the decision of the Minister was rendered. He relied on the case of Josphat Nyaga Mukembo & 21 Others V Attorney General & 4 Others [2016] eKLR for that proposition. He did not, however, address the issue of whether or not such title was lawfully and regularly issued in the first place.

33. Section 28of the Land Adjudication Act provides what the Chief Land Registrar is required to do in the event of an appeal being filed during the adjudication process. It stipulates as follows:

“Upon receiving the adjudication register under section 27 of this Act, the Chief Land Registrar shall cause registrations to be effected in accordance with the adjudication register:

Provided that, where the land is affected by an appeal under section 29 of this Act, a restriction shall be made and registered in respect of that land expressed to endure until the determination of the appeal, and on such determination the register shall if necessary be altered in accordance with the determination.”(emphasis added)

34. The court is of the opinion that the Land Registrar was legally obligated to enter a restriction against the suit property the moment the appeal to the Minister was filed. The material on record shows that upon objection Nos. 232 of 1983 and 45 of 1983 being dismissed, the appeal was filed. The material on record shows that the land register for the suit property was opened on 23rd January 2004 about 21 years after the institution of the appeal. The land register also shows that the Plaintiff’s title was first issued on 28th November 2005 and later re-issued on 11th May 2006.

35. It is thus clear that the Plaintiff’s title deed was issued during the pendency of the appeal before the Minister. It was issued irregularly and in violation of Section 28of the Land Adjudication Act. Whether the omission to enter a restriction was deliberate or an oversight is not of much consequence for now since the answer thereto cannot wipe out the irregularity in the issuance of the title deed. It may well have been an oversight because in 2006 the land registrar entered a restriction preventing further dealings with the suit property pending conclusion of the appeal.

36. The court is, therefore, unable to follow the case of Josphat Nyaga Mukembo & 21 Others V Attorney General & 4 Others (supra). Instead, the court is persuaded by the reasoning in the case of Euton Njuki Makungo V Republic & 2 Others [2014] eKLR whereby the Court of Appeal held, inter alia, that:

“A person who has knowledge of a pending appeal cannot come to court and submit that because there were no restrictions entered in the register, he could deal with the land as he pleases. He who comes to equity must come with clean hands. The appellant and the registered proprietor knew there was a pending appeal and the disputed parcel of land was still undergoing the adjudication process. We find that the 2nd Respondent had jurisdiction to hear the appeal relating to the parcel of land. In the case of R-v-Lancashire County Council Ex p Gayer, (1980) 1 WLR 1024 it was stated that courts should be acutely conscious that they do not usurp the role of the administrator by assuming the task of deciding how resources are to be allocated as between competing claims. We adopt the above dicta in R-v- Lachashire County Council Ex p Gayer, (supra) and observe that it is not the duty of the Registrar of Land to determine adjudication disputes; the evidence on record is clear that an appeal to the Minister was pending and the Registrar had no jurisdiction to issue the title deed in favour of Mwaniki Mwige while the appeal was pending.”(emphasis added)

37. The court is thus not satisfied that the Minister had no jurisdiction to make the decision which he did. The law expressly provides that upon conclusion of an appeal the records should be altered in such manner as to accord with the decision of the Minister. The court is not satisfied that the alleged bias on the part of the Minister was proved at the trial. The material on record indicates that all the concerned parties were heard by the Minister. The Plaintiff did not even point out what irrelevant considerations were taken into account in the decision making process. The mere fact that the Minister did not abide by the decision in previous adjudication proceedings could not be a legitimate reason to file a declaratory suit. The Minister was not bound to follow any previous decisions. See Timotheo Makenge V Manunga Ngochi [1976-80] 1 KLR 1136. Accordingly, the court finds and holds that the Plaintiff has failed to prove that the Minister’s decision was null and void.

38. The 3rd issue is whether the instant suit is res judicata and an abuse of the court process. The court has considered the material and the submissions on record on this issue. The court has considered the previous proceedings during the land adjudication process and the previous burial dispute in Embu CMCC No. 186 of 2015. The court is not satisfied that the instant suit is res judicata within the meaning of Section 7 of the Civil Procedure Act (Cap. 21). The mere fact that subject matter of previous proceedings was the very same suit property does not necessarily connote that the matters in controversy herein were conclusively determined in previous proceedings.

39. The court is also unable to find any evidence that the instant suit is an abuse of the court process. Abuse of court process connotes using the machinery of the court for improper purposes e.g. using the court process for purposes other than those for which it was intended or maliciously prosecuting proceedings for ulterior motives. See Trust Bank Limited V Amin & Co. Ltd [2000] KLR 168. There is no evidence on record to suggest that the Plaintiff is treading on the path of abuse of court process. In the premises, the 3rd issue is answered in the negative.

40. The 4th issue is whether the Plaintiff is entitled to the reliefs sought in the plaint. The court has found and held that the Plaintiff has failed to demonstrate that the Minister’s decision was null and void. It would, therefore, follow that the Plaintiff is not entitled to a declaration that he is the absolute owner of the suit property or any of the other reliefs sought in the plaint. The prayer for an injunction to restrain the 1st Defendant from burying the body of the deceased on the suit property has since been overtaken by events. The evidence at the trial indicated that the deceased was buried several years ago upon determination of the appeal.

41. The 5th 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 the action unless, for good reason, the court directs otherwise. See Hussein Janmohamed & Sons V Twentsche Overseas Trading Co. Ltd [1967] E A 287. The court finds no good reason why the successful litigant in this suit should not be awarded costs of the suit. Accordingly, the Defendants shall be awarded costs of the suit.

J. Summary of the court’s findings

42. In summary, the court makes the following findings on the issues for determination:

a) The suit against the 2nd, 3rd & 4th Defendants is incompetent and bad in law for want of proper service of summons under Order 5 of the Civil Procedure Rules. Accordingly, the Attorney General’s first preliminary objection is upheld.

b) The Plaintiff has failed to demonstrate that the 2nd Defendant’s decision in Minister’s Land Appeal Case No. 1775 of 1986 was null and void.

c) There is no evidence on record to demonstrate that the instant suit is res judicata or otherwise an abuse of the court process.

d) The Plaintiff is not entitled to the reliefs sought in the plaint or any one of them.

e) The Defendants shall be awarded costs of the suit to be borne by the Plaintiff.

K. Conclusion and disposal orders

43. The upshot of the foregoing is that the court finds and holds that the Plaintiff has failed to prove his case against the Defendants to the required standard. Accordingly, the court makes the following orders for disposal of the suit:

a) The Plaintiff’s suit against the 2nd, 3rd & 4th Defendants be and is hereby struck out for being incompetent and bad in law for want of compliance withOrder 5 Rules 1 & 2of theCivil Procedure Rules.

b) The Plaintiff’s suit against the 1st Defendant be and is hereby dismissed in its entirety.

c) The Defendants are hereby awarded costs of the suit to be borne by the Plaintiff.

44. It is so decided.

JUDGEMENT DATEDandSIGNEDin Chambers at EMBU this14TH DAY ofMAY 2020in the absence of the parties due to the prevailing Covid-19 situation. The Judgement was transmitted to Victor L. Andande & Co. Advocates for the Plaintiff, Muthoni Ndeke & Co. Advocates for the 1st Defendant and the Attorney General for the 2nd & 3rd Defendants through the email addresses which they provided.

Y.M. ANGIMA

JUDGE

14. 05. 2020