[2021] KEELC 3403 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 2 OF 2021

JOSEPHAT NJUGUNA KARUGU......................PLAINTIFF/RESPONDENT

-VERSUS-

MARGARET NDUTA NGUGI.........................1ST DEFENDANT/OBJECTOR

JOHN NJENGA KARIUKI..............................2ND DEFENDANT/OBJECTOR

SAMUEL NGUGI KARIUKI...........................3RD DEFENDANT/OBJECTOR

RULING

The matter for determination is the Notice of Preliminary Objection dated 4th February 2021, brought by the Defendants/ Objectors on the grounds that;

1. This suit is bad in law and an abuse of due process of law.

2. This suit is time barred under the statute of limitation act.

3. This suit is Res Judicata as a different suit touching on the same issues and the same parties has been determined.

4. This application is unprocedural and fatally defective in the presence of a parallel application filed by the respondents seeking evictions orders against the applicant on similar facts in Succession Cause No.1213 of 2001.

5. This suit is void ab initio for want of compliance with the law on the sought prayers.

The Notice of Preliminary Objection was canvassed by way of written submissions and the Defendants/Objectors through the Law Firm of R.W Muhuhu & Company Advocates, filed their submissions on 3rd March 2021, and submitted that a Grant for the estate of the deceased issued toWilson Ngugi Karanja,in the year 2000,was revoked and subsequently issued on 27th November 2002, with the Plaintiffs/ Respondents full knowledge and on 15th February 2008, all transactions that had taken place on the Deceased title were revoked and since then, the Plaintiff/ Respondent has not filed any claim either for Specific Performance or endorsement or completion thus his Claims is barred by Section 7 of the Limitation of Actions Act,It was further submitted that as in the instant suit , there was no sale agreement, evidence of payment and as the claim was brought out of time, the suit is a non starter and ought to be struck out. They relied on the case ofDanson Muniu Njeru ….Vs…. William Kiptarbei Korir & 6 others (2014) eKLR.

It was their submission that the Plaintiff/Respondent admitted to having participated in Succession Cause No. 1213 of 2001, which was determined in 2008, and that he admitted that it related to ownership of land that he alleged to have purchased from the Deceased, while the instant suit relates to claim of ownership of the same parcel of land and specific performance. That the Plaintiff/ Respondent litigated a similar issue and lost. That the decision cannot be contradicted by a Court of even jurisdiction. Further that the Application is unprocedural and fatally defective on the presence of a parallel Application by the objectors seeking eviction orders against the Plaintiffs/Respondents on similar facts in Succession Cause No. 1213 of 2001 (Succession Cause No. 282 of 2006 Nakuru)and should the Court grant injunctive orders, it would have defeated the pending Application . The Court was urged to struck out the pleadings.

The Plaintiff/Respondent through theLaw Firm of Kamata & Company Advocates,filed his submissions on 31st March 2021and submitted that the Judgment ofHon. Lady Justice Koome(as she then was)in Succession CauseNo. 1213 of 2001,recommended that people who were claiming to have purchased portions of the suit land from the late Felix Ngugito file their relevant claims in the relevant Court . That the Plaintiff/ Respondent Appealed against the said Judgment delivered on 15th February 2008, which Appeal was dismissed on 7th October 2015. That the Plaintiff’s/ Respondent’s suit is not time barred as from the time the Appeal was dismissed on7th October 2015,to the date the instant suit was filed on 15th January 2021,only a span of 5 years had lapsed and there was no way to file the suit while the Appeal was pending. Further that by the time the Appeal was dismissed, one of the Administrators had passed on and it took time to replace him and there was therefore no representation of the estate of the late Felix Ngugi Karanja for that time. That the Plaintiff/ Respondent only learnt of the substitution upon service of Application for eviction.

It was further submitted that the Plaintiff/ Respondent was not a party in Succession Cause 1213 of 2001, and therefore his grievances were not heard and determined. That the said suit is yet to be finalized hence the filing of the eviction orders.

The Court has now carefully read and considered the Notice of Preliminary Objection, the written submissions and the Pleadings in general and finds that the issue for determination is whether the Notice of Preliminary Objection is merited

Do the Grounds of Objections raised by the Defendants/ Objectors qualify to be a Preliminary Objection as was described in the case of Mukisa Biscuit Manufacturing Co. Ltd …Vs… West End Distributors Ltd (1969) EA 696,where Law J A stated that;

“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 the pleadings and which objection point may dispose the suit”.

Further the Court stated;

“A preliminary objection raises a pure point to law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.

The Court has considered the five grounds raised by the Defendants/Objectors . The Objectors have raised various issues amongst them that the suit is Res Judicata; the same is bad in law and that the same is fatally defective as there is a parallel Applications by them seeking eviction orders. In the case of Henry Wanyama Khaemba …Vs… Standard Chartered Bank Ltd & Another (2014) EKLR, the Court held that:

“That re-statement of the limited scope of a Preliminary Objection brings me to the point where I hold that the Preliminary Objection by the 1st Defendant is not a true Preliminary Objection in the sense of the law. The issues of res judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as Preliminary Objections because of the limited scope of the jurisdiction on preliminary objection. Court of laws have always had a well-founded quarrel with parties who resort to raising preliminary objections in improperly”.

Further in the case of George Kamau Kimani & 4 Others…Vs…County Government of Trans Nzoia & Another (2014), eKLR, the Court held that:-

“I have considered the points raised by the 1st Defendant. All those points can be argued in the normal manner. They do not qualify to be raised as Preliminary Points. One cannot raise a ground of res judicata by way of Preliminary Objection. The best way to raise a ground of res judicata is by way of Notice of Motion where pleadings are annexed to enable the court to determine whether the current suit is res judicata. Professor Sifuna did not raise the issue of res judicata by way of Notice of Motion. Professor Sifuna only annexed a ruling in respect of a case which was struck out. This is not a proper way of issues which require ascertainment of facts by way of evidence. They cannot be brought by way of Preliminary Objection”.

It is not in doubt that for the Court to ascertain whether the instant suit is Res Judicata, unprocedural or bad in law and an abuse of the Court process, the Court will have to ascertain and probe evidence more so as the parties are disputing various issues. Therefore the Court finds and holds that grounds No.1,3,4 and 5are not pure points of law as they are not capable of disposing off the matter preliminarily without calling for evidence, probing it and the Court ascertaining facts from elsewhere and therefore the same are not properly raised Preliminary Objection . 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.”

See also the case of United Insurance Co. Ltd…Vs…Scholastica A. Odera, Kisumu HCCA No.6 of 2005, where the court held that:-

“A Preliminary Objection must be based on a point of law which is clear and beyond doubt and Preliminary Objection which is premised on facts which are disputed cannot be used to determine the whole matter as facts must be precise and clear to enable the court to say the facts are not contested or disputed.”

On groundNo.2 on jurisdiction and the allegations that the suit has been barred by statute, it is not in doubt that the issue of whether or not the provisions of the law have been complied with before the filing of the suit, goes to the jurisdiction of the Court and does not require the ascertaining of facts as Jurisdiction is everything and without Jurisdiction the court has no option but to down its tools. See the case of Owners of Motor Vessel ‘Lilian S’…Vs…Caltex Oil (Kenya) LTD (1989) 1 KLR, where the Court held that:-

“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no Jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it at the moment it holds the opinion that it is without Jurisdiction.”

The Court herein is required to determine what the law says and whether indeed the suit is barred by Limitation of Actions and will not require the probing of evidence. All that the Court would then need to do is determine what the law says and this would only mean that the same raises a pure point of law.

From the description of Preliminary Objection in the Mukisa Biscuits case (supra) and given that an issue of whether the suit is barred by the Limitations of time, does not involve ascertaining of facts, then the instant Notice of Preliminary Objection as raised by the Defendants/ Objectors meets the test of what amounts to a Preliminary Objection. It raises pure points of law and it can be determined without ascertainment of facts from elsewhere but from the pleadings. Consequently, the Court finds and holds that the ground 2 of the Notice of Preliminary Objection as filed by the Defendants/ Objector is a Preliminary Objection as per the Mukisa Biscuits case (supra).The Court will then determine whether the Preliminary Objection on jurisdiction is merited.

The Defendants / Objectors have contended that the instant suit is time barred as the Plaintiff’s/ Respondent’s allegation that though there was no sale agreement , he had paid for the land and took possession in 1999. That a Grant of Estate issued toWilson Ngugi Karanjawas revoked and subsequently reissued in2002with full knowledge of the Plaintiff/ Respondent and that on15th February 2008, all the transactions that had taken place on the title deed were cancelled.

The Objectors anchored their Objection inSection 7 of the Limitations of Actions Actwhich provides that;

“An action may not be brought by any person to recover land after the end of 12years from the date on which the right of action accrued to him and if it first accrued to some person through whom he claim to that person.”

When then did the right of actions accrue?In the case of Edward Moonge Lengusuranga …Vs… James Lanaiyara & another [2019] eKLR the Court held that

“A cause of action, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit. According to Section 26 of the Limitation of Actions Act the cause of action accrues when the fraud is discovered. In the present scenario therefore I find that the alleged fraud was discovered on the 13th January 2015 and a period of three years ended on 13th January 2018. These proceedings were filed on the 20th August 2018 which period was beyond the 3 years from the date the fraud was discovered.”

Persuaded by the above case, it is not in doubt that a cause of action is a set of facts to justify a right to sue. What then in this case are the sets of facts that the Plaintiff /Respondent used to justify its rights to sue?

It is not in doubt that on 15th February 2008, the Court revoked the Grant and in the Plaintiff’s/ Respondents submission, he was not satisfied with the said decision and therefore appealed against the decision and the same was heard and determined and thereafter dismissed in 2015. He therefore contended that time stopped running. It was his further submission that one of the Administrators of the Deceased estate died and therefore he was unable to pursue the case and only learnt of the substitution when he as served with eviction Notice.

It is thus the Court finding that the cause of action rose in 2008, as the set of facts being the revocation of the transactions justified the right to sue. However, as the Plaintiff/ Respondent sought to assert his right, through an Appeal and then time stopped running and it began running again in the year 2015. However, as the contention that the death of one of the Administrators prevented him from filing the suit, does not hold water. Section 39 of the Limitations of Actions Act provides for periods when the Limitations of Actions does not run and states

(1) A period of limitation does not run if—

(a)there is a contract not to plead limitation; or

(b)that the person attempting to plead limitation is estopped from so doing.

(2) For the purposes of subsection (1) of this section, “estopped” includes estopped by equitable or promissory estoppel.

Equitable estoppel is generally words or conduct which cause another person to believe a certain state of things exists and to consequently change his or her position in an adverse way. The Plaintiff/ Respondent contended that there was an Appeal and or that one of the Administrators had not been replaced in the Court. In the case ofWilliam Gatuhi Murathe ….Vs… Gakuru Gathimbi [1998] eKLR the Court held that;

“Time which has begun to run under the Act is stopped either when the owner asserts his right or when his right is admitted by the adverse possessor.

Assertion of right occurs when the owner takes legal proceedings or makes an effective entry into the land. The old rule was that a merely formal entry was sufficient to vest possession in the true owner and to prevent time from running against him. Such a nominal entry, even though it was secret, entitles him to bring an action within a year afterwards, and as it was possible to make such an entry every year, in this case called continual claim, the title to land might be in doubt for longer than the period of limitation. It was therefore provided by the Real Property Limitation Act 1833, in a section which has been repeated in the Limitation Act 1939, that a person shall not be deemed to have been in possession merely because he has made an entry on the land. He must either make a peaceable and effective entry, or sue for recovery of the land.’

I agree that the mere filing of a suit for recovery of possession may not disrupt the possession of the adverse possessor, it being a physical thing, but as regards the stopping of time for the purposes of the Act, I would fully subscribe to the position expounded by Potter JA in Githu v Ndeete, and which has solid backing in the passage I have read from Cheshire. It is the sensible step to take instead of going into the disputed land armed to dislodge the adverse possessor, an act which can only result in a serious breach of the peace or even loss of life. It may well be true that in India the position as set out by Kneller JA in Muthoni v Wanduru does work, but I do not regard it as a practical approach to take in land disputes in Kenya. As there are authorities of this Court going both ways I am free to decide which way to go. And on this particular point I will go with the potter JA . The only reason I can think of for the apparent contradiction in the decisions I have discussed is the total absence of law reports during the period under review, a calamity which has yet to be redressed.

In my judgement, therefore, time stopped to run against the appellant when he filed the Kiambu case in 1984. That case was not withdrawn or discontinued but was transferred to the High Court in Nairobi and consolidated with the O.S. taken out by the respondent. On the respondent’s own testimony before the learned Judge, he went into possession in 1974 and since the appellant filed his possession suit in 1984, time ceased to run against him because by taking that step the appellant, as owner, asserted his right. So therefore when the respondent took out his O.S. in July 1988, he had not been in continuos and uninterrupted possession for 12 years for the purposes of section 38 of the Act, and he was not therefore entitled to judgement.”

Even if as we have said, that the respondent’s adverse possession against Ayub Nguyai “B” began in 1972, which was before the appellant was registered as the proprietor of the suit land, then the uninterrupted adverse possession that would enable the respondent to claim to be entitled to the suit land, would end in 1985. A fortiori, by the time when the appellant filed his counterclaim in 1979, and which effectively interrupted the respondent’s adverse possession of the suit land, the respondent had not achieved twelve years of uninterrupted adverse possession of the suit land as against the appellant.

It is clear that the learned judge had not bothered to consider all the relevant issues which if he had done, could not have come to the conclusion that the respondent had been in uninterrupted adverse possession for more than twelve years as against the appellant by the time he heard the appellant’s counterclaim.

It is therefore not in doubt that time stops to run when a person asserts their right. In this instant the Plaintiff/ Respondent sought to assert his right when he preferred an appeal. The Court therefore finds and holds that time did stop running for his purposes. However, on the contention that one of the Administrator of the estate of the Deceased passed on and therefore nothing could be done, the Court finds that the same cannot hold water as the Estate had other Administrators who were capable of carrying on the duties of the Deceased Administrator. See section 81 of the Law of Succession Act, which provides for vesting of the powers and duties of personal representatives in the survivor or survivors of a dead personal representative. The provision provides as follows –

‘Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executor or administrators shall become vested in the survivors or survivor of them:

Provided that, where there has been a grant of letters of administration which involve any continuing trust a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until the court has made a further grant to one or more persons jointly with him.’

On whether the Objection is merited, the Court has gone through the Plaint dated 15th January 2021 and notes that the Plaintiff/ Respondent has sought for injunctive orders, orders of Adverse Possession and orders of Specific Performance. As the Court has held that time started running on 7th October 2015, when the Appeal was dismissed, then the suit herein is not time barred.

From 7th October 2015to15th January 2021, the Court finds that the 6 year period within which the Plaintiff/Respondent could seek for order of Specific Performance has not lapsed. Further the prayer for Adverse Possession is based on Section 7 of the Limitation of Actions Act and time having not passed, therefore the same cannot be barred by Section 7. Consequently the Court finds and holds that the Notice of Preliminary Objection is not merited and the same is dismissed with costs. Let the suit be heard and be determined on merit.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 6TH DAY OF MAY 2021.

L. GACHERU

JUDGE

6/5/2021

Court Assistant – Phyllis

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Kamata for the Plaintiff/Respondent

M/s Muhuhu for the 1st, 2nd and 3rd Defendants/Objectors

L. GACHERU

JUDGE

6/5/2021