[2021] KEELC 2003 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC NO. E012 OF 2021 (OS)

IN THE MATTER OF THE ESTATE OF MUGWIKA RIMBERIA

ALIAS M’MUGWIKA M’RIMBERIA (DECEASED)

AND

IN THE MATTER OR ORDER 37 RULES 1, 16, 17,

18 & 19 OF THE CIVIL PROCEDURE RULES 2010

AND

IN THE MATTER OF L.R NO. NYAKI/MULATHANKARI/243

BETWEEN

TABITHA NTINYARI M’MUGWIKA...........................................1ST PLAINTIFF

AMOS KIMATHI JOTHAM............................................................2ND PLAINTIFF

GEDION KAIMENYI........................................................................3RD PLAINTIFF

DORCAS MAKENA..........................................................................4TH PLAINTIFF

ALICE MUKIRI JOTHAM..............................................................5TH PLAINTIFF

VERSUS

JANET KIRUGI M’RIMBERIA...................................................1ST DEFENDANT

MOSES MURITHI JOTHMA......................................................2ND DEFENDANT

KENYA WOMEN MICROFINANCE BAK PLC.......................3RD DEFENDANT

RULING

1. By an originating summons dated 22. 3.2021 the applicants seeks the following orders:

(i) Whether the plaintiffs, the 1st and 2nd defendants are members of one family and heirs of the estate of Mugwika Rimberia alias M’Mugwika Rimberia

(ii) Whether the said M’Mugwika Rimberia alias M’Mugwika M’Rimberia died on 1. 11. 1993.

(iii) Whether L.R No. Nyaki/Mulathankari/243 belonged to and was in the name of Mugwika Rimberia alias M’Mugwika M’Rimberia until his death on 11. 11. 1993.

(iv) Whether the suit land was ancestral land and whether the deceased was registered as a trustee (customary trust of the land in question to hold the same in trust for himself, the 1st and 2nd defendants and all the plaintiffs.

(v) Whether the plaintiffs and 2nd defendant were all born and raised by the deceased on the suitland and whether the plaintiffs have developed the suit land by construction of their homes and whether they earn a living therefrom.

(vi) Whether the demise of the registered owner of the suitland was transmitted to the 1st defendant via Meru H.C Succ 367 of 2011 and whether the registration of the suit land on 1. 11. 2012 in the name of the 1st defendant was done so as a trustee or as an absolute owner and proprietor of the suitland.

(vii) Whether the 1st defendant is in breach of the trust bestowed upon her when she agreed to charge the said family land to the 3rd defendant to secure or guarantee the repayment of a personal loan advanced by the 3rd defendant to the 2nd defendant.

(viii) Whether by using the suitland as security as aforesaid and without the express and written consent and authority of the plaintiffs, the 1st defendant acted as an absolute owner and ignored the proprietary interests of the plaintiffs over the suitland and therefore was in breach of the trust bestowed upon her.

(ix) Whether the 3rd defendant failed to conduct proper and due diligence to establish on the ground, whether the plaintiffs had settled, developed and depended on the suitland and that their consent was mandatory before the family land was offered as collateral to the 3d defendant.

(x) Whether the plaintiffs have any protectable or justiciable right or interest in the Suitland in view of the fact that the suitland is family and ancestral land.

(xi) Whether the 3rd defendant sought and obtained consent from the plaintiffs before accepting the Suitland as collateral for the personal loan advanced to the 2nd defendant.

(xii) Whether the charge over the suitland by the 3rd defendant is illegal, procedural and offends the interests of the plaintiffs over the suitland and whether the register of the suitland ought to be amended to show that the 1st defendant hold the said land in trust for herself and all her children in equal shares and also whether the plaintiff’s suit succeeds.

2. Alongside the originating summons was an application brought under certificate of urgency dated 22. 2.2021 seeking the following orders:

(a) That the application be certified urgent and it be heard exparte in the first instance.

(b) That pending interpartes hearing of the application an order of inhibition be issued, inhibiting the registration of any dealings over L.R No. Nyaki/Mulathankari/243 and the land registrar at Meru be directed to register the inhibition so issued.

(c) That pending interpartes hearing of the application an order of temporary injunction be issued, restraining the 3rd defendant, its agents, workers auctioneers, assigns, contractors or any other person acting at the 3rd defendant’s directions, contract or behest from selling by way of public auction or private treaty L.R No. Nyaki/Mulathankari/243.

(d) That pending the hearing and determination of the suit or until further orders of the court an order of inhibition be issued, restraining the 3rd defendant, its agents, workers, auctioneers, assigns, contractors or any other person acting at the 3rd defendant’s directions contract or behest from selling by way of public auction or private treaty L.R Nyaki/Mulathankari/243.

(e) That pending the hearing and determination of the suit or until further orders of the court an order of temporary injunction be issued, restraining the 3rd defendant, its agents, workers, auctioneers, assigns, contractors or any other person acting at the 3rd defendant’s directions, contract or behest form selling by way of public auction or private treaty L.R No. Nyaki/Mulathankari/243.

(f) Costs.

3. The application is based on the following grounds:

(i) The plaintiffs are children of Mugwika Rimberia alias M’Mugwika M’Rimberia who died on 11. 11. 1993.

(ii) The deceased was registered as the owner of L.R No. Nyaki/Mulathankari/243 on 18. 12. 1967 which was the only family and ancestral land. The deceased therefore held the said land as a trustee for himself and all his children and wife under the Kimeru customary trust laws.

(iii) Upon the demise of the original owner and trustee over L.R No. Nyaki/Mulathankari/243, a succession cause was filed at Meru High court being succ. Cause no. 367 of 2011 and the 1st defendant was registered as the owner of the said land, a trustee on behalf of the plaintiffs 1 and 2 defendants.

(iv) In breach of the trust bestowed upon her, the 1st defendant charged the suitland in favour of the 3rd defendant, to secure the repayment of a personal loan advanced to the 2nd defendant by the 3rd defendant. No consent and/or authority and/or permission was sought and obtained from the plaintiffs before the only family and ancestral land was offered as collateral to the 3rd defendant.

(v) That the 2nd defendant has defaulted in the repayment of his loan and the 3rd defendant has advertised the suit land for sale by public auction on 2. 3.2021.

(vi) That unless the orders sought are granted, the plaintiff and their children shall be rendered homeless and destitute because once the hammer falls at the public auction, intended to take place on 2. 3.2021, then the suit property shall be out of the reach of the plaintiffs.

(vii) That the plaintiffs and their children do not have any other land where they can live and eke a living from. The plaintiffs and their children all depend on the suit land as a home and a place to farm and earn a living therefrom.

4. The application was certified urgent and interim orders issued on 24th February 2021 following whose service to the respondents entered an appearance on 9th March 2021. The 1st and 2nd respondents are not opposed to the motion.

5. The 3rd respondent opposed the application by a preliminary objection dated 26th April, 2021. Likewise the 3rd respondent filed a replying affidavit sworn on 9th March 2021 and attached annexures marked JKM 1-20 (a) & (b). Following leave 3rd defendant filed a further replying affidavit sworn on 23rd April 2021.

6. This court on 27th April 2021 gave directions that both the application dated 22. 2.2021 and the 3rd defendants preliminary objection dated 26th April 2021 be prosecuted simultaneously by way of written submissions. In compliance the 1st, 2nd and 3rd defendants filed undated submissions on 26. 7.2021 and 10th June 2021 respectively.

Background facts

7. Parcel No. Nyaki/Mulathankari/243 initially was registered in the name of the late Mugwika Rimberia alias M’Mugwika M’Rimberia who passed on 11. 11. 1993. Subsequent to his death there was Meru High court succession cause no. 367 of 2011 whereby the 1st respondent was bequeathed the whole land by a grant dated 27th June 2012. The 1st respondent proceeded to register the property under her name as consented by other beneficiaries, guaranteed a loan and charged the property to the 3rd respondent, defaulted in repayment of the loan leading to issuance of statutory notices of sale. A suit was filed before the Chief Magistrates Court in Meru CMCC no. 216 of 2019 which debarred the exercise of statutory powers by the 3rd respondent pending issuance of requisite statutory notices.

8. The 3rd respondent subsequently regularized and gave a fresh notice for auction of the suit land on account of default on 17th October 2019.

9. Alfred Mwiti Bundi herein the appellant in the Court of Appeal applied for revocation of the confirmed grant in Meru succession cause no. 367 of 2011 claiming to have been omitted in the cause though listed as one as per chief’s letter dated 28. 6.2011.

10. The succession court held the 1st respondent herein did not state she was to hold the property in trust for herself and the other beneficiaries and nor did the latter object and or claim any trusteeship during the confirmation of the grant.

11. It is also a fact that all parties herein were also parties in the application for revocation of grant to save to say the 2nd and 3rd respondents herein were merely joined as interested parties by Alfred Mwiti Bundi on 11. 11. 2019 and hence were not initial dependents or beneficiaries to the estate as the bank only came into the picture on 1st March 2016 when the suit property was transmitted and registered in the name of the 1st respondent and was charged to it.

12. Further the court made a definite finding the 1st respondent herein failed to inform the 3rd respondent the land was an ancestral land occupied by her children and grandchildren at the time of the loan issuance.

13. Aggieved by the said ruling Alfred Bundi has appealed to the Court of Appeal in Nyeri.

14. Given the foregoing facts the 3rd respondent has raised a preliminary objection to the application dated 27th April 2021 on the following grounds:

(i) The plaintiffs applicants suit falls short of the doctrine of res-subjudice as there is an appeal on the same subject matter herein between the parties pending determination under Nyeri civil appeal no. 41 of 2021, Alfred Mwiti Bundi vs Janet Kirungi M’Mugwika and 5 others.

(ii) That the plaintiff/applicants suit is filed offends section 6 of the Civil Procedure Act and the court lacks jurisdiction to grant the orders prayed for.

(iii) That the plaintiff/applicants suit is instituted against the 3rd defendant is vexatious and otherwise an abuse of the process of this court and ought to be struck out forthwith. The 3rd respondent relies on the following case law:

- Kenya National Commission on Human Rights vs Attorney General IEBC and 16 others (2020) eKLR.

- Rep vs Paul Kihara Kariuki AG and 2 others exparte law society of Kenya 2020 eKLR.

- Kiama Wangai vs John N. Mugambi and another (2012) eKLR.

- Wendano Matuu co. Ltd and 4 others vs Stephen Ndambuki Muli and 12 others Registrar of companies (business registration services interested party (2021) eKLR

15. It is the 3rd respondents view in its written submissions that the suit herein is both res subjudice and resjudicata.

The Supreme Court of Kenya Independent Electoral & Boundaries commission vs Maina Kiai & 5 others 2017 eKLR case, has held a party that seeks to invoke the doctrine of resjudicata must establish:

(a) The suit or issue was directly and substantially in issue in the former suit.

(b) That former suit was between the same parties or parties under whom they or any of them claim.

(c) Those parties were litigating under the same title.

(d) The issue was heard and finally determined in the former.

(e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.

16. With regard to res subjudice, Section 6 of the Civil Procedure Act expressly provides that no court shall proceed with a trial of any suit or proceeding in which the matter in issue is also directly and substantially instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.

17. It is admitted in the instant suit there was a succession cause involving the parties herein which is now pending before the Court of Appeal. It is also not in dispute there was another suit involving the parties herein though not all of them before the Chief Magistrates Court Meru though its outcome is not clarified herein.

18. The only exception in the instant suit and the lower court is that the appellant in the Court of Appeal has not been a party in both suits.

19. It is not in contention by all parties herein that the subject issue is L.R No. Nyaki/Mulathankari/243 in all the suits and parties herein are involved one way or the other but in different capacities.

20. The 3rd respondent submits the prayers raised in the originating summons are both res subjudice and res judicata while on the other hand the applicants submit the issues and prayers have not been determined by a court of competent jurisdiction.

21. The court is faced with a situation wherein there are three major issues all which are intertwined namely a succession dispute, a commercial dispute and a customary law trust suit claim but all spread in different courts at different stages of trial.

22. Regarding the instant suit, it is now trite law that customary trusts are overriding interests protectable under section 28 of the Land Registration Act 2012. The applicants originating summons is premised on the facts that the applicants are members of the deceased family are in possession and actual occupation of the suitland, with protectable customary law rights against the respondents herein.

23. My further understanding of the applicants’ case is that even though the 1st respondent was registered as an absolute proprietor by transmission following a succession cause, the registration was subject to the applicants’ overriding interests.

24. The Supreme Court of Kenya has now cleared the confusion on the issue of declaration of customary trust over registered land in M’Inanga Kiebia vs Isaaya Theuri M’Lintari and another (2018) eKLR.

25. In my considered view and looking at the circumstances of this case, there is no record that the issues of customary law trust raised in the originating summons have been conclusively heard and determined by a competent court and a decision rendered so as to find a claim that the suit herein is resjudicata or an abuse of the court process.

26. To my mind, the application before the High Court was simply whether or not Alfred Bundi was a beneficiary or dependant of his deceased grandparent in terms of section 26 or 29 of the Law of Succession Act even though he approached the court through an application for revocation of grant and brought on board the respondents herein as interested parties.

27. The High Court did not conduct any hearing on the matters of customary law trust as overriding interests and make definite findings, particularly on question no’s 4 -12 of the originating summons, which in any event are intertwined with issues 1-3 thereof.

28. Turning to the issue of whether the suit herein is vexatious and or an abuse of the court process, given the issues raised in the originating summons, though cross-cutting with matters in the earlier cases, one cannot therefore say the applicants are irritants, out to annoy, lack bonafides, are malicious and have no iota of law supporting their claim as submitted by the 3rd respondent, in the attached caselaw.

29. The applicants have to my mind brought forth a customary claim as per kimeru customary law which this court under Article 2 (4) of the Constitution, Section 3 (2) of the Judicature Act and section 28 of the Land Registration Act is supposed to apply and be guided by it.

30. Faced with similar scenario in the case of Kiama Wangai vs John N. Mugambi & another (2012) eKLR, Nguruman Ltd vs Jan Bonde Nielsen and another (2017) eKLRand the Court of Appeal in Kenya Commercial Bank Ltd vs Muiri Coffee Estate Ltd and 30 others 2013 eKLR, the court stayed one of the pending suit till the other was heard and determined together. On my part I take the considered view that it would be in the interest of justice to stay the instant suits until the appeal is heard and determined.

31. Turning to the issue of the application dated 22. 2.2021 the applicants are seeking inhibition and injunctive orders against the respondents over the suit premises pending hearing and determination of the originating summons. They rely on case law of Nguruman Ltd vs Jan Bonde Nelsen & 2 others (2014) eKLR, Tabitha Wambui Muchemi vs Zipporah Njoki (2017) eKLR Esther Wanjiru Githatu vs Mary Wanjiru Githatu (2019) eKLR Rahab Njirika Ngugi vs Lucy Nyaguthi Ndirangu (2017) eKLR and Eunice Ngongo Wahome vs Joseph Kihara Theuri (2015) eKLR.

32. On the other hand the 3rd respondent opposes the application relying on the case law of Sceneries Ltd vs National Land commission (2017) eKLR, Benson Ngungi vs Francis Kabui Kinyanjui & others (1989) KLR 146, Zipporah Mwangi vs Zipporah Wanjiru Njoroge (2017) eKLR Re-estate of Josephat Magiri Mwongera (deceased) 2019 eKLR and Utetabi Africa adventures Ltd and another vs Christopher Michael Lockley (2017) eKLR.

33. The bottom line is that there is an impending auction over the subject land on account of default by the 2nd respondent who is the principal debtor to the 3rd respondent over the 1st respondent parcel of land wherein she is a guarantor. On the other hand the applicants are alleging customary trust to oppose the auction sale.

34. Further, the applicants allege they have been in possession/occupation of the subject land prior to the registration of the property on account of transmission and extension of the loan to the 2nd respondent by the 3rd respondent and up to date.

35. Section 68 (1) of the Land Registration Act provides;

“The court may make an order inhibiting for a particular time generally until a further order the registration of any land lease or charge”.

36. This provision gives the court discretion to issue orders so as to preserve the property from that which would otherwise render a court order incapable of execution or to give an opportunity to hear and decide the matter.

37. Having reached a conclusion above to have this suit stayed in order for the Court of Appeal matter to be determined one way or the other, it is in the interest of justice to order status quo be maintained with no precipitate adverse action by the respondents herein over the subject property.

38. In similar circumstances the Court of Appeal in Alice Karuru Kithinji vs Gideon Kithinji Limberia (1997) eKLR, held there is always need to give a measure of protection over the suit property. I therefore order the status quo subsisting at the time of making this ruling to continue till the hearing and determination of the appeal. Costs shall be in the cause.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 15TH DAY OF SEPTEMBER, 2021 IN PRESENCE OF:

C/A: Kananu

Mr. Karanja for plaintiffs

1st and 2nd defendants in person

Mr. Kimaita for 3rd defendants

HON. C.K. NZILI

ELC JUDGE