[2018] KEHC 6274 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

MISC. CIVIL APPLICATION NO. 35 OF 2017

JOHN MWANGI JOSEPH.................................................APPLICANT

VERSUS

MICHAEL NJOROGE “B”...........................................RESPONDENT

COUNTY LAND REGISTRAR, KIAMBU..................RESPONDENT

RULING

1. This is one case that has truly refused to end. It saw its first light of day in 1979 as Gatundu Senior Resident Magistrate’s Succession Cause No. 5 of 1979. It has seen several alterations and mutations – several of which have gone all the way to the Court of Appeal and then back again to the Gatundu Magistrate’s Court. Thirty-nine years later, I am required to determine two related Applications which raise the same question: which is the proper decree to enforce in the case?

2. I hope my resolution of the case will bring to an end this protracted dispute. I fear, given the history and conduct of the parties, that I am wrong. If so, I hope that at least the brief but clear history of the litigation I give here will at once put the litigation in perspective, sharply frame the relevant issues that are in dispute, and save other Judicial Officers who might be seized of this case in the future of the excruciating torture I went through following through the twisting and spiraling maze of legal journey that this case represents.

3. As stated, the controversy began as a succession cause respecting the estate of Joseph Chege Muruma (“Deceased”). The Deceased died on 06/12/1975. A Succession Cause was filed at the Gatundu Law Courts and was styled as Gatundu Succession Cause No. 15 of 1979. By consent, the parties agreed to refer the matter to arbitration by the local elders chaired by the Gatundu District Officer.

4. The elders filed an award in Court. The proceedings of the arbitration and the award are dated 09/04/1981. The Learned Senior Resident Magistrate G.K. Mutai accepted the award and adopted it as the judgment of the Court on 10/07/1981.

5. Before a formal decree could be drawn up, it became apparent that the arbitral award, as communicated to the Gatundu Court, needed some clarification. The Learned Magistrate noted so on 23/07/1981 on the Court record and intimated that the Court would be moved “normally” to deal with any arising disputes. Consequently, the Chair of the Arbitration Panel, P.O. Raburu, the District Officer, wrote a letter dated 23/09/1981 correcting the arbitral award. That letter was signed by all the elders who had sat in the arbitration.

6. This letter was followed by a letter dated 13/05/1982 authored by the new District Officer of Gatundu, C.M.E. Amibay further clarifying the acreages awarded to each beneficiary to the estate following the surveying done by the District Surveyor. The acreages indicated in this letter would later be included in the formal decree extracted in the case.

7. There is an important record of the Gatundu Court for 07/10/1981 whereby all the parties agreed that there was no longer any dispute and that “the land should be inherited as awarded.” The Court records Joseph Wathigari as stating: “I am satisfied with my four acres.” It will soon become obvious why this is consequential.

8. Meanwhile, some of the beneficiaries were not equally satisfied with the arbitral award as adopted by the Court. One such dissatisfied beneficiary was Tabitha Wangari Chege who was one of the widows to the Deceased. She filed an Application in the Gatundu Court seeking a review of the judgment entered adopting the arbitral award. Her position was that the arbitral award did not reflect equitable distribution of the Deceased’s estate. However, Tabitha Wangari Chege did not file an appropriate application to set aside the arbitral award as the law demanded. Instead, she filed it as a review application asking the Learned Magistrate to vary the terms of the award. The Learned Trial Magistrate promptly dismissed the Application.

9. Naturally, Tabitha Wangari Chege was aggrieved by the dismissal of her Application to review the judgment of the Court adopting the arbitral award. She therefore preferred an appeal to the High Court. That was High Court Civil Appeal No. 71 of 1983. The Appeal was heard by Okubasu J. (as he then was). On 23/10/1984, the Learned Judge dismissed the Appeal, and, in the process held that the judgment entered by the Learned Trial Magistrate “as subsequently altered in terms of [the] arbitration award” was to be enforced. The Learned Judge presciently advised the parties to abide by the judgment entered in terms of the award “in order to avoid protracted litigation which will result into waste of time and money.”

10. It would appear that sometime in 1982, Michael Njoroge “B” had also approached the Gatundu Court seeking for a review of the arbitral award. On 18/12/1982, Michael Njoroge “B” got somewhat favourable orders from the Learned G.K. Mutai to the effect that “he should not be moved from 252”A” to 340 without his consent.”

11. However, following this decision by the High Court, one other beneficiary, John Mwangi Joseph, brought an Application dated 8th April, 1992 within Gatundu Succession Cause No. 15 of 1979 seeking orders on how two parcels of land owned by the Deceased were to be distributed to specific beneficiaries following the correction of the arbitral award. That Application was opposed by, among others, Michael Njoroge “B”. He advanced the same arguments he had advanced before the Learned G.K. Mutai to try and persuade the Learned S.M.S. Soita that the distribution of the estate should be varied. Michael Njoroge “B” was unsuccessful. The Learned S.M.S. Soita dismissed the objections and allowed the Application – relying in large part on the decision by Okubasu J. (as he then was) of 23/10/1984.

12. The Learned S.M.S. Soita found that it was improper for the Learned G.K. Soita to have tried to vary the arbitral award. In any event, it was the view of the Learned S.M.S. Soita that the decision by his brother G.K. Mutai was not to categorically give Michael Njoroge “B” any rights but to permit discussions which could change his inheritance only if all the parties mutually agreed.

13. In any event, on 03/07/1992, the Learned S.M.S. Soita, in a lucid decision, allowed the Application by John Mwangi Joseph and permitted enforcement of the arbitral award as altered.

14. It was following this decision by the Learned S.M.S Soita that, on 20/07/1993, a formal decree was drawn up reflecting the arbitral award (as amended) and indicating how the properties of the Deceased were going to be distributed. Since that distribution is the gravamen of the controversy, it is important to reproduce it here. The decree read that:

“It is ORDERED and DECREED that:

1. This Honourable Court shall sign the necessary documents to facilitate the transfer of land parcels No. Kiganjo/Gatei/340 and Ndarugu/Gathaite/252 “A” as per the award dated 18th December, 1982.

2. That the two portions be shared as per the award as follows:

Kiganjo/Gatei/340

1. Patrick Bungu - 3. 40 acres

2. Michael Stephen Njoroge - 5. 05 acres

3. Samuel Mureithi - 1. 40 acres

4. Widows homestead:

a. Mineh Wangari -

b. Tabitha Wangari

c. Mary Nduta - 0. 33 acres

5. Michael Njoroge “B” - 2. 50 acres

6. Passage - 0. 36 acres

7. John Mwangi Joseph - 2. 60 acres

8. Vincent Kimani Chege - 3. 50 acres

9. Onesmus Burugu Chege - 6. 10 acres

10. Church area - 0. 45 acres

Ndarugu/Gathaite/252 “A”

1. Vincent Kimani Chege - 4. 65 acres

2. Joseph Mwangi Joseph - 3. 56 acres

3. Onesmus Burugu “C” - 3. 75 acres

4. Passage – 6ft and County council passage – 0. 75 acres

5. Onesmus Burugu “A” - 5. 09 acres

6. Jacinta Wanjira - 1. 00 acres

7. Njora Chege - 0. 25 acres

8. Joseph Wathigari - 4. 00 acres

9. Kiambu County Council - 1. 00 acres

Costs be in the cause.”

15. Again, naturally, some beneficiaries were dissatisfied with the order and decree of S.M.S. Soita dated 20/07/1993. They made an Application for stay of execution in High Court Misc. Application No. 912 of 1993. Bosire J. (as he then was) heard the Application and dismissed it – sounding another warning to the parties to abide by the arbitral award which was adopted by the Court.

16. The dissatisfied parties responded by making an application for review of Bosire J.’s decision as well as an appeal. The appeal was Court of Appeal Civil Appeal No. 214 of 1997. These dissatisfied beneficiaries had ephemeral reprieve: Shah J. (as he then was) allowed their application for review and permitted a stay of execution. However, their temporary success ended when the Court of Appeal struck out their appeal on 04/02/1998.

17. It is important to pause and recall where this left things by 04/02/1998: by striking out the appeal, the Court of Appeal left only the arbitral award (as altered), and as adopted by the Court – and as reflected in the decree dated 20/07/1993 as the only valid judgment amenable to enforcement.

18. Hence, some beneficiaries went back to the Gatundu Court and filed an Application to execute the decree in order to implement the award by elders as adopted by the Court. They also wanted a caveat placed on one of the properties owned by the Deceased removed so that they could proceed with distribution. This was done vide an Application dated 07/08/2000. That Application was opposed by, among others, Michael Njoroge “B”. His argument before the Learned Trial Magistrate this time round was that the original Succession Cause (No. 15 of 1979) which had been litigated all this time was, in fact, a nullity. This was because, Michael Njoroge “B” argued, the Cause was instituted by the wrong parties and was wrongly intituled. Michael Njoroge “B”, therefore, wanted the Court to dismiss the Application dated 07/08/2000 seeking enforcement of the decree issued in Gatundu Succession Cause No. 15 of 1979 (which had been confirmed by two High Court decisions: one by Okubasu J.; the other by Bosire J.) and, instead, to declare the whole Cause a nullity and order the parties to start a succession cause afresh.

19. Astoundingly, Michael Njoroge “B” succeeded. The Learned Shem Kebongo, RM agreed with Michael Njoroge “B” and declared Gatundu Succession Cause No. 15 of 1979 a nullity. He required the parties to file a fresh succession cause. By the same token, the Learned Magistrate declined to permit execution to issue.

20. This decision by Honourable Shem Kebongo permitted Michael Njoroge “B” to launch a new succession cause in the High Court being Nairobi Succession Cause No. 2556 of 2001 respecting the estate of the Deceased. A preliminary objection was promptly taken up on account of the doctrine of res judicata. It fell on the Learned Onyancha J. to determine the preliminary objection. In a ruling dated 14/05/2007, Onyancha J. struck out the Succession Cause as being res judicata. In the process, Onyancha J. did not mince his words in declaring the decision by the lower court (Shem Kebongo, RM) “invalid, null and void.”

21. In unusually strong language, Onyancha J. said the following of what had transpired in the lower Court:

First of all….the only way to set aside or nullify an arbitration award is under Order 45 rule 15 aforementioned. Secondly, the issue of setting [aside] an award was not before the Resident Magistrate. Thirdly, the relevant law as neither considered nor applied. The application before him was for the granting of leave to execute and the removal of a caveat. The Honourable Magistrate had no business in my view, of determining a fundamental issue not before him. In particular, he had no authority nor jurisdiction to review the whole succession cause judgment without the same being formally before him. Secondly, he had no powers or authority to overturn clear rulings and announcements made by the High Court in High Court Civil Appeal No. 71 of 1983 and High Court Misc. App. No. 912 of 1997. Worse still, he had no power or authority to authorize the filing of a fresh petition for the administration and distribution of an estate which had been validly and fully administered and distributed in the same Succession Cause. In my view, his act to attempt to nullify the earlier judgment of the Court, was an exercise in futility. His legally unsupported orders could not reverse what had already, validly and legally taken place. It was not only a reckless exercise of judicial power but also a serious abuse of court and judicial process. The Honourable Magistrate’s raw exercise of judicial power is hereby deprecated in the strongest judicial terms.

22. That was on 14/05/2007. The strong language by Onyancha J. – as the earlier stern warnings by Okubasu J. and Bosire J. – did not dim the determination of the dissatisfied beneficiaries from attempting to somewhat revise the arbitral award in the Succession Cause. Next, Michael Njoroge “B” and others trooped back to the Gatundu Law Courts and filed for a fresh decree in the case. The decree they applied for was based on the Court’s proceedings on 10/07/1981 when the Magistrate’s Court initially recorded and adopted the arbitral award. Michael Njoroge “B” and Others conveniently forgot that the same Court had amended that arbitral award following communication from the arbitration panel. They, also, more conveniently forgot that the same Court had, on 20/07/1993, issued a decree which had withstood various Court attempts to revise it. It is not clear if Michael Njoroge “B” and the Others of his thinking informed the Gatundu Court of these two facts. However, somehow, Michael Njoroge “B” emerged from the Gatundu Court with a new decree dated 21/01/2008. That decree is, obviously, markedly different than the one issued on 20/07/1993. This is because this latter decree is based on the un-altered arbitral award and ignored what had happened in the Gatundu Court on 07/10/1981 and 03/07/1992. It also ignored the proceedings and decisions of the High Court in Civil Appeal No. 71 of 1983 and High Court Misc. App. No. 912 of 1997.

23. Suffice it to say that by the time the sun set on 21/01/2008, Michael Njoroge “B” and Others had a decree in their favour. It read as follows:

“IT IS HEREBY ORDERED:

1. THAT the award dated 9th April, 1981 filed in Court be and is hereby in the presence of all parties.

2. THAT Land parcel No. Ndarugu/Gatei/340 be succeeded by starting from the Eastern side and as divided on the ground as follows:

1) Patrick Muruma

2) Michael Njoroge

3) Samuel Muriithi

4) Widows homestead

5) Michael Njoroge “B”

6) Passage

7) John Mwangi

8) Vincent Kimani

9) Burugu Nduhu

10) Church area

NB: To be succeeded as divided on the ground.

3. THAT Land parcel No. Ndarugu/Gathaiti/252 “A” to be succeeded by:

1) Kiambu County Council (One) 1 acre.

2) Joseph Wathigari – the balance.

4. THAT Land parcel No. Ndarugu/Gathaiti/252 “B” to be succeeded by Arcachious Njora.”

24. By this point, then, it became possible to objectively say that there were two seemingly conflicting decrees issued by the Gatundu Magistrate’s Court from Gatundu Succession Cause No. 15 of 1979. One was issued on 20/07/1993; the other on 21/01/2008.

25. So, Vincent Kimani and Others filed an Application dated 25/02/2008 at the Gatundu Magistrate’s Court seeking a review of the decision to issue the decree dated 21/01/2008. That Application was promptly dismissed by the Learned D.G. Karani, Senior Resident Magistrate on 20/01/2009. It is unclear if the proper history of the litigation was brought to the Learned Magistrate’s attention.

26. Undeterred, Vincent Kimani and Others filed an Application for stay of execution at the Gatundu Law Courts. The Application was to stay the decree issued on 21/01/2008 pending their appeal to the High Court. The Application for stay was dismissed by the Learned Magistrate on 29/09/2009.

27. Meanwhile, Vincent Kimani and Others filed an Appeal being Appeal No. 5 of 2009 at the High Court. They then proceeded to make an Application for stay of execution of the decree dated 21/01/2008 at the High Court. That Application came before Njagi J. Unfortunately for them, Njagi J. dismissed that Application on 16/09/2009.

28. Vincent Kimani and Others, still undeterred, filed an Application to review the decision by Njagi J. This Application came before Nambuye J. (as she then was). On 21/10/2011, after giving a comprehensive history of the litigation, Nambuye J. allowed the review and ordered a stay of execution pending appeal to the Court of Appeal. However, no appeal was timeously filed and Mwera J., sitting as a single Judge of Appeal, refused to extend time to Vincent Kimani and Others to file and serve the Record of Appeal out of time. This was on 24/05/2013. The final attempt to have the appeal heard substantively on its merits at the Court of Appeal breathed its last at the hands of a three-judge bench (Musinga, K. M’Inoti and Murgor, JJAs) who rejected a reference from the decision Of Mwera, JA denying extension of time. That last decision of the Court of Appeal came on 18/12/2014 in Court of Appeal Civil Application No. NAI 272 of 2012 (UR 197/2012).

29. Meanwhile, Michael Njoroge “B” and Others approached the Gatundu Magistrate’s Court in Succession Cause No. 15 of 1979 in an Application dated 01/09/2014 seeking for leave to enforce the decree dated 21/01/2008. The Application was opposed. This time, the Application came before the Learned M. Kinyanjui, SRM. After a hearing, the Learned Magistrate considered the history of the litigation and in a short ruling dismissed the Application. In pertinent part, she ruled as follows:

The Respondent [Vincent Kimani] has correctly deponed that he left the title deed to Land Parcel No. Ndarugu/Gathaite/252A with the Land Registrar Thika so that the land could be subdivided.

30. The upshot is that the Learned Magistrate reached two consequential conclusions: First, she held that it was wrong for the Applicants (Michael Njoroge “B” and Others) to have applied to extract the decree dated 21/01/2008 since there was another extant decree in the matter. Second, the Learned Magistrate held that the proper decree for enforcement in the Succession Cause was the decree issued on 20/07/1993.

31. The Ruling dated 11/12/2014 was the last one issued in the matter. The two antagonist camps have now approached this Court each with their own miscellaneous Application; each a mirror image of the other. John Mwangi Joseph drew the first blood. He filed a Notice of Motion dated 16/03/2017 seeking four prayers as follows:

1) That this application be certified as extremely urgent and be heard ex parte at the first instance.

2) That the Honourable Court be pleased to empower the County Land Registrar, Kiambu to remove the caution put by Michael Njoroge “B” on Parcel No. Kiganjo/Gatei/340 in relation to the properties of the Estate of Joseph Chege Muruma (Deceased) as per the Ruling and Order issued on 11/12/2014 in Succession Cause No. 15 of 1979.

3) That the Honourable Court be pleased to empower the County Land Registrar, Kiambu to sign on behalf of the Administrators and/or execute all the relevant to effect transfer in relation to Land Parcel No. Kiganjo/Gatei/340 and Ndarugu/Gathaiti/252 “A” and “B” the properties of the Estate of Joseph Chege Muruma (Deceased) as per the Decree issued on 20th July, 1993 and as per the Ruling delivered on 11th December in Succession Cause No. 15 of 1979.

4) That the Executive Officer, Chief Magistrate’s Court (Sic) Gatundu to sign all relevant documents to transfer Land Parcel No. Kiganjo/Gatei/340 and Ndarugu/Gathaiti/252 “A” and “B” the properties of the Estate of Joseph Chege Muruma (Deceased) as per the Decree issued on 20th July, 1993 and as per the Ruling delivered on 11th December in Succession Cause No. 15 of 1979.

5) That the Honourable Court be pleased to issue any such further orders that it deems fit [and] convenient.

32. On their part, Michael Njoroge “B” and Joseph Wathigari brought their own Application dated 12/10/2017. It seeks the following substantive prayers:

1) That this Application be certified as extremely urgent and be heard ex parte at (sic) in the first instance.

2) That the Honourable Court be pleased to empower the County Land Registrar, Kiambu to sign on behalf of the family of the Late Joseph Chege Muruma and/or execute all the relevant Transfer Forms to effect transfer in relation to Land Parcel No. Kiganjo/Gatei/340 and Ndarugu/Gathaiti/252 “A” and “B” the properties of the Estate of Joseph Chege Muruma (Deceased) as per the Decree given on 10th July, 1981 and issued on 21st January, 2008.

3) That the Executive Officer Chief Magistrate at Gatundu to sign all the relevant documents to transfer Land Parcel No. Kiganjo/Gatei/340 and Ndarugu/Gathaiti/252 “A” and “B” the properties of the Estate of Joseph Chege Muruma (Deceased) as per the Decree given on 10th July, 1981 and issued on 21st January, 2008.

4) That Honourable Court be pleased to empower the County Land Registrar Kiambu to remove any caution or cancel out any title issued on Land Parcel No. Kiganjo/Gatei/340 and Ndarugu/Gathaiti/252 “A” and “B” the properties of the Estate of Joseph Chege Muruma (Deceased) that might not be in line with the judgment and decree issued on on 10th July, 1981 in Case No. 15 of 1979.

5) That the Honourable Court be pleased to issue any such further orders that it deems fit [and] convenient in line with the judgment of 10th July, 1981.

6) That the aforesaid application be heard together with Miscellaneous No. 35 of 2017 which is coming up on 15th November, 2017 forinter parteshearing.

33. Both Applications were originated as Miscellaneous Civil Applications – the one dated 16/03/2017 being Misc. Civil Application No. 35 of 2017; and the one dated 12/10/2017 being Misc. Application No. 202 of 2017. On 15/11/2017, I gave directions, with the consent of the parties, consolidating the two files and directing that the two Applications will be argued together and a single ruling given since they are substantively the same.

34. As I indicated at the beginning of this ruling, the gravamen of both Applications is the singular question: which is the proper decree to be enforced in Gatundu Magistrate’s Court’s Succession Cause No. 15 of 1979? To be specific, is the proper decree to be enforced the one reflecting the proceedings of the Magistrate’s Court on 10/07/1981 and extracted on 21/01/2008 or the one extracted on 20/07/1993 and re-affirmed by a ruling dated 11/12/2014?

35. After carefully perusing the voluminous affidavits, various rulings, judgments and orders associated with this case as well as the written submissions by the parties’ advocates, and after outlining the history of the litigation above, I have come to the conclusion that this case does not require any laborious analysis to determine its correct resolution. Noting the following facts about the case, in my view, recommend an obvious resolution:

1) An arbitral award was filed in Gatundu Succession Cause No. 15 of 1979, and was adopted as the judgment of the Court on 10/07/1981.

2) The arbitral award was later amended following communication from the Chair of the arbitration panel to accord with the actual decision of the panel and to clarify the acreage of allocation of land to various beneficiaries.

3) There was an attempt made to review the arbitral award as amended and adopted in Court in the Magistrate’s Court. It failed. An appeal to the High Court equally failed with Okubasu J. giving a ruling affirming the arbitral award judgment on 23/10/1984 in High Court Civil Appeal No. 71 of 1983.

4) On 03/07/1992, the Learned S.M.S. Soita, Resident Magistrate, allowed the Application by John Mwangi Joseph permitting the enforcement of the arbitral award as altered and dismissing another attempt to vary the arbitral award.

5) A formal decree was drawn and issued on 20/07/1993 reflecting the arbitral award (as amended) and indicating how the properties of the Deceased were going to be distributed.

6) No application to set aside the arbitral award (as amended, affirmed and recorded in Court) was ever filed or allowed.

7) Attempts to challenge the decree issued on 20/07/1993 failed at the High Court in High Court Misc. Application No. 912 of 1993 (Bosire J.) and at the Court of Appeal in Court of Appeal No. 214 of 1997 – leaving it intact.

8) An order declaring all the proceedings based on Gatundu Magistrate’s Court Succession Cause No. 15 of 1979 by the Learned Shem Kebongo was subsequently declared invalid, null and void by Onyancha J. on 27/05/2007 in High Court Civil Case No. 2556 of 2001. The result was to further inoculate the arbitral award as reflected in the decree dated 20/07/1993.

9) Despite the various rulings and judgments which, basically, affirmed the arbitral award as reflected in the decree dated 20/07/1993, upon dismissal of High Court Civil Case No. 2556 of 2001, Michael Njoroge “B” and Others approached the Gatundu Magistrate’s Court seeking to extract the controlling order in the case. The decree they applied for, and which they, somehow, managed to extract was one reflecting the proceedings of the Magistrate’s Court on 10/07/1981. They extracted a decree dated 21/01/2008. This is the decree Michael Njoroge “B” and Joseph Wathigari now seek to have orders to enforce.

10) The extraction of the order dated 21/01/2008 was improper. As aforesaid, the arbitral award was corrected and recorded in Court supplanting the “incomplete” adoption of the arbitral award reflected in the proceedings of 10/07/1981. The correct and controlling decree issued in Gatundu Magistrate’s Court Succession Cause No. 15 of 1979 has always been that which was issued on 20/07/1993. That decree reflects the proper arbitral award in the case. That arbitral award has never been set aside by any Court of competent jurisdiction.

11) Consequently, the subsequent decisions by the Learned Magistrate Court in Gatundu based on the extracted decree dated 21/01/2008 are of no consequence. The appeals to the High Court and Court of Appeal filed after the extraction of the decree of 21/01/2008 were all attempts to stay the execution of that decree. None of the appeals regarded the substantive question of the correct decree for execution. As aforesaid, the controlling decree, based on the arbitral award as corrected and recorded by the Court is the one dated 20/07/1993.

36. Having reached this consequential conclusion based on a straightforward review of the chronology and historiography of the controversy, it follows that the Notice of Motion Application dated 16/03/2017 by John Mwangi Joseph is merited in the same fashion as the Notice of Motion Application dated 12/10/2017 by Michael Njoroge “B” and Joseph Wathigari is un-merited.

37. Consequently, I hereby allow, in its entirety the Notice of Motion Application dated 16/03/2017. By the same token, I hereby dismiss the Notice of Motion Application dated 12/10/2017.

38. John Mwangi Joseph shall have the costs of the Consolidated Application.

39. Orders accordingly.

Dated and delivered at Kiambu this 4th day of June, 2018.

.........................

JOEL NGUGI

JUDGE