[2019] KEHC 3018 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL CASE NO. 77 OF 2018

(Formerly Eldoret ELC No. 119 of 2017)

JERUTO TAPKILI TENGEKYON................................................1ST PLAINTIFF

SAMWEL KIPRUTO CHEPKEITANY.........................................2ND PLAINTIFF

VERSUS

AGRICULTURAL FINANCE CORPORATION........................1ST DEFENDANT

KOLATO AUCTIONEERS...........................................................2ND DEFENDANT

STEPHEN KIBOWEN..................................................................3RD DEFENDANT

RULING

[1] The Notice of Motion dated 27 April 2019 was filed herein by the 3rd Defendant, Stephen Kibowen (hereinafter “the Applicant), pursuant to Sections 1A, 1B, 3 and 3Aof the Civil Procedure Act, Chapter 21 of the Laws of Kenya; and Order 47 Rule 6(2) of the Civil Procedure Rules, 2010,for orders that this suit be tried at the Environment and Land Court, Nakuru; and that the costs of the application be borne by the Plaintiffs. The application was premised on the grounds that:

[a]The Environment and Land Court at Nakuru is already seized of ELC Civil Case No. 218 of 2014: Stephen Kibowen vs. AgriculturalFinance Corporation and ELC Civil Case No. 174 of 2015: Stephen Kibowen vs. Raymond Ruto & 7 Others;

[b] That the Plaintiffs herein have applied to be enjoined as interested parties in Nakuru ELC Civil Case No. 218 of 2014: Stephen Kibowen vs. Agricultural Finance Corporation;

[c]That the Plaintiffs herein unsuccessfully sought to be enjoined together with the 1st Defendant, as defendants in ELC Civil Case No. 174 of 2015: Stephen Kibowen vs. Raymond Ruto & 7 Others and have lodged Nakuru Civil Appeal No. 69 of 2016 at the Nakuru Registry of the Court of Appeal;

[d]That videNakuru Court of Appeal Civil Application No. 15 of 2017the Plaintiffs have sought stay of further proceedings inNakuru ELC Civil Case No. 174 of 2015: Stephen Kibowen vs. Raymond Ruto & 7 Otherspending the hearing and determination of the appeal;

[e]That if the Plaintiffs herein are enjoined as parties in Nakuru ELC Civil Case No. 218 of 2014 and/or ELC Civil Case No. 174 of 2015 they will be seeking the same reliefs as they are seeking in this suit;

[f]That if this suit proceeds to hearing before this Court there is a real likelihood of this court being embarrassed by making conflicting orders over matters already adjudicated upon pending or pending at Nakuru;

[g]That Nakuru is the most convenient place to try this suit as, among others, the cause of action arose in Nakuru, the suit parcel of land is situated nearer Nakuru as compared to Eldoret, the 2nd and 3rd Defendants and their witnesses reside in Nakuru Town and Nakuru is near the 1st Defendant’s Head Office as compared to Eldoret;

[h]That the Plaintiffs are engaged in forum shopping which is an abuse of the court process.

[2] The aforestated grounds were expounded on in the Applicant’s Supporting Affidavit, sworn on 27 April 2017. He deposed therein how, on or about 5 May 2014 he read an advertisement in the Daily Nation newspaper about a public auction of a parcel of land known as Lembus/Kilombe/157 measuring 27. 5 Ha (67. 95 acres); and that the said advertisement had been put up by Kolato Auctioneers, the 2nd Defendant herein, on the instructions of Agricultural Finance Corporation, the 1st Defendant herein. The Applicant averred that it came to his knowledge that the land was being sold by the 1st Defendant in exercise of its statutory power of sale as a charge; and that the charger was the 1st Plaintiff, Jeruto Tapkili Tengekyon.

[3] The Applicant further averred that he got interested in the said piece of land (hereinafter, “the Suit Property”) and therefore bought it at a public auction on 27 May 2014 at Kshs. 5 million; and that when the 1st Defendant attempted to resile from the sale, he instituted Nakuru ELC Civil Case No. 218 of 2014: Stephen Kibowen vs. Agricultural Finance Corporation which was decided in his favour on 19 March 2015. He added that, being dissatisfied with the decision of the court, the 1st Defendant herein filed a Notice of Appeal and an application for stay of execution; which application was dismissed on 13 May 2015.

[4]It was further the assertion of the Applicant that, by an application dated 20 May 2015, the Plaintiffs herein sought to be enjoined as interested parties in Nakuru ELC Civil Case No. 218 of 2014: Stephen Kibowen vs. Agricultural Finance Corporation; and that the said application was scheduled for hearing on 2 May 2017. In the meantime, he filed Nakuru ELC Civil Case No. 174 of 2015: Stephen Kibowen vs. Raymond Ruto & 5 Others seeking among others eviction orders against persons who were residing on the Suit Property; and that again, the Plaintiffs sought to be enjoined, together with the 1st Defendant, as Defendants in Nakuru ELC No. 174 of 2015, which application was dismissed on 14 July 2016. They then proceeded to lodge Nakuru Civil Appeal No. 69 of 2016: Samwel Kipruto Chekeitany & Another vs. Stephen Kibowen & 6 Others,which appeal is pending hearing and determination.

[5] In paragraphs 15 to 20 of the Supporting Affidavit, the Applicant averred that, by an application dated 21 March 2017, the Defendants in Nakuru ELC No. 174 of 2015: Stephen Kibowen vs. Raymond Ruto & 5 Others, applied for the transfer of that suit to the ELC, Eldoret; and that, to steal a march on him, they caused the application to be disposed of ex parte and orders made transferring that suit to the ELC, Eldoret, for consolidation with this suit. He thereupon applied for review of those orders, and his application for review was yet to be heard by the time this application was filed.

[6] In the premises, it was the contention of the Applicant that if this suit proceeds to hearing at Eldoret there is a real likelihood of there being conflicting orders with the matters already determined by Nakuru ELC; and that the expenses and difficulties of the trial will be minimized by having this suit transferred to Nakuru where the Defendants reside, and within the limits of whose jurisdiction the Suit Property is situate. It was further averred that, since the Suit Property was sold in Nakuru, the cause of action arose in Nakuru; and therefore that, taking into account that all the matters that have been decided or are pending, have been decided and are pending either before the ELC or Court of Appeal at Nakuru, it is only fair that this suit be transferred to Nakuru for hearing and determination.

[7]The Defendants opposed the application and relied on the Replying Affidavit sworn on 18 July 2017 by the 2nd Defendant, Samwel Kipruto Chepkeitany.He averred that the Applicant is guilty of non-disclosure of matrial facts, by failing to disclose that a similar application for transfer had been made by the Defendants in Nakuru ELC No. 174 of 2015. He further contended that it is improper for the Applicant to open up issues that are subjudice since Nakuru ELC No. 174 of 2015 had been set for mention on 15 August 2017 for highlighting of submissions; while Nakuru ELC No. 218 of 2014 had been scheduled for mention on 30 October 2017 for a similar purpose. It was therefore the assertion of the Plaintiffs that the application for transfer is premature. The Plaintiffs also sought to distinguish this case from the Nakuru matters by pointing out that, in this suit they are challenging the 1st Defendant’s exercise of its statutory power of sale; while in the Nakuru ELC 174 of 2015 the Applicant seeks the eviction of the 2nd Defendant’s children from the Suit Property.

[8] The application was urged by way of written submissions; which were filed herein on 9 May 2018 and 25 May 2019, respectively. Counsel for the Applicant submitted that since the Suit Property is closer to Nakuru than Eldoret; and since the sale transaction happened in Nakuru; which is also where the he resides, Nakuru should be appointed as the place of hearing. He also pointed out that the 2nd Defendant is also resident in Nakuru; and that the said location is much closer to the 1st Defendant’s Head Office in Nairobi than Eldoret. Counsel relied on, inter alia, Margaret Wairimu Magugu vs. Investment Ltd & 4 Others [2017] eKLR as well as Section 12 of the Environment and Land Court Act, No. 19 of 2011 and Practice Directions made thereunder; which is understandable since the matter was initially filed before the Environment and Land Court, Eldoret.

[9] I have given due consideration to the application and all the averments in the affidavits filed herein. I have, likewise, given due consideration to the submissions made herein by Learned Counsel for the parties. Section 15(b) of the Civil Procedure Act does provide that:

“…every suit shall be instituted in a court within the local limits of whose jurisdiction—

(a) the defendant or each of the defendants (where there are more than one) at the time of commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or

(b) any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or

(c) the cause of action, wholly or in part arises.”

[10] From the pleadings and the averments in the affidavits pertaining to the instant application, there is no dispute that the Applicant is a resident of Nakuru. There is similarly no controversy that the 2nd Respondent is a firm of Auctioneers based in Nakuru; or that the impugned sale transaction took place in Nakuru. Accordingly, the Applicant has the law on his side in his contention that this suit ought to have been filed in Nakuru. One must however keep in mind the history of the suit; namely, that it was only transferred to the High Court on 14 November 2018, and that it was initially before the Environment and Land Court, Eldoret.

[11] A plausible explanation has been given in the Replying Affidavit that, since the Suit Property is situate in Eldama Ravine, the nearest court with jurisdiction would have been the High Court at Kabarnet; but on account of the subject matter, which included cancellation of title, Counsel settled on the nearest Environment and Land Court at Eldoret, in line with the relevant Practice Directions, in particular, Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, And Title to Land and Proceedings in other Courts, Gazette Notice No. 5178dated25th July 2014.

[12] Secondly, it is noteworthy that in its Ruling dated 14 July 2016 in Nakuru ELC No. 174 of 2015 in respect of an application by the Plaintiffs and the 1st Defendant for joinder in Nakuru ELC No. 174 of 2015 wherein the Applicant herein sought the eviction of the children of the 2nd Plaintiff, the court took the view that:

“…the plaintiff has sought orders of eviction against specific individuals. It is those people who he believes are in possession of the land. I cannot force defendants upon the plaintiff unless it is clear that the orders sought cannot be granted in the absence of the proposed defendant/s. The case here is one of possession of property. The plaintiff is of the view that it is the defendants that he has named who are in possession of the land and he now wants them evicted. He states that so far he has no claim over the applicants…I also do not see where AFC comes into these proceedings. AFC already sold the suit land to the plaintiffs. AFC was sued by the plaintiff to transfer the land to the plaintiff herein and that case has already been decided in favour of the plaintiff. The land has already been transferred to the plaintiff who is now the registered proprietor. The case herein is over possession and occupation of the suit land, not in the manner in which AFC sold the land to the plaintiff. If the applicants have a quarrel over this, that to me, is a separate course of action, not tied to the prayers herein. I am not therefore convinced that AFC is a necessary party…”

[13] In the circumstances, the Plaintiffs cannot be faulted for bringing this separate cause of action. Any argument that they were out forum shopping have no basis, granted the foregoing observations.

[14] Regarding the application for transfer, it is manifest from the averments of the parties and the documents annexed to their affidavits that a similar application had been made in Nakuru ELC No. 174 of 2015 vide the Notice of Motion dated 21 March 2017. One of the orders prayed for in that application was:

“That this matter be transferred to Eldoret Environment and Land Court for hearing and final determination and be consolidated with ELDORET ENVIRONMENT AND LAND CASE NO. 119 OF 2017: JERUTO TAPKILI TENGEKYON and SAMWEL KIPRUTO CHEPKEITANY =VERSES= AGRICULTURAL FINANCE CORPORATION, KOLATO AUCTIONEERS and STEPHEN KIBOWEN.”

[15] The said application was premised on the ground that the issues raised and prayers sought herein are substantially in issue in Nakuru ELC No. 174 of 2015; and therefore that it was only fair that the two matters be consolidated to save on judicial time, resources and avoid courts of concurrent jurisdiction arriving at conflicting decisions over the same matter. The parties were in agreement that the said application was resolved; and while the Applicant averred that the said application was argued ex parte and an order of transfer granted, there is on record a Ruling made in Nakuru ELC No. 174 of 2015 dated 15 February 2018 to the effect that the said application was heard on the merits and dismissed by Hon. Ohungo, J. who also directed that:

“…As regards the fears about conflicting decisions, the parties are at liberty to keep the courts abreast of orders and decisions that may be made in the two different stations…”

[16] In the premises, it is manifest to me that the instant application has been overtaken by events and is hereby struck out with costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 17TH DAY OF OCTOBER, 2019.

OLGA SEWE

JUDGE