[2017] KEHC 2395 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 1925 OF 1998

JULIUS NYUMU & 31 OTHERS..............................................PLAINTIFFS

VERSUS

GITHUNGURI CONSTITUENCY RANCHING

CO. LIMITED & 30 OTHERS ...............................................DEFENDANTS

JUDGMENT

INTRODUCTION

1. This case concerns individual claims of proprietorship to land in a land buying company. The dispute has been in existence for decades, a phenomenon rather common in such land buying companies. The present suit was filed in 1998, but the dispute thrived many years earlier on. Githunguri Constituency Ranching Co. Ltd, the first defendant is the land buying company formed by over 3000 shareholders in the 1960’s. Plaintiffs were some of these shareholders.

2. The company bought parcels of land No. L.R 9314, 8897 and 10900/1 consisting of 7700 acres. As is the norm in such scenarios, the land was subdivided so that the shareholders could get their respective individual portions of land. The allotment was done through balloting whereby each plaintiff got a number.

3. Somewhere down the line, the parcels of land allocated to the plaintiffs were reallocated to 2nd – 30th defendants. The latter were issued with title deeds. By the time of the trial, many of the litigants had passed on.

THE RECORD.

4. The record of the court is in shambles. Some of the pleadings are missing, proceedings are torn and generally the file is in disarray. That notwithstanding the court is able to discern important details which will assist the court in making a final finding, particularly, the records concerning a previous suit as well as the pleadings.

5. Existence of HCC No.2573 of 1988. This suit was filed by the present plaintiffs against the defendants vide a plaint dated 10/9/1988. The case was similar to the present one. It was dismissed on 31/7/1996. The plaintiff’s lodged an appeal No. 5 of 1998 which appeal was dismissed on 22/7/1998. Thereafter, plaintiffs filed HCC No. 1925 of 1998 (the present suit) via a plaint dated 2/9/1998, amended on 12/10/2001.

6. PLEADINGS;

The plaint. The amended plaint dated and filed on 12/10/2001 is intact. It’s quite lengthy. What the plaintiffs contend is that there was a general meeting resolution of 1/7/83 where it was resolved that all the parcels of land were to be subdivided amongst the 3500 shareholders. The company (1st defendant) was to be dissolved thereafter. Balloting was then done and each plaintiff was allocated a parcel measuring one and a quarter acre of land through a ballot plot reference number. Somewhere between 1983 and 1985, plaintiffs surrendered their plots back to the company in exchange of other plots. The bone of contention is another resolution made on 14/12/1986 which occasioned re subdivision of the parcels of land into smaller units of a quarter acre and the entry of other persons to wit the defendants.

7. In summary, plaintiffs’ prayer is for a declaration that the resolutions of the first defendant passed at the purported special meeting of 14/12/1986 is ultra-vires and illegal and not binding and that the same should not be implemented. Further, plaintiffs pray for orders to stop any alienation of their parcels of land, that they should not be evicted and that they should be assisted to get title deeds.

8. Defence; Up to 22/3/2017 when the case was scheduled for hearing, 1st defendant appears not to have ever filed any defence. The court however allowed it to file their pleadings within 14 days as from 22/3/2017. There was no compliance, therefore, the Statement of Defence filed on 24/5/2017 by 1st defendant is disregarded altogether.

9. There is a memorandum of Appearance by Onesmus Githinji & Co. Advocate dated and filed on 16/9/1998. The document doesn’t indicate which defendants were being represented.

10. In a freshly bound bundle of document availed by Muturi Njoroge and co. advocates, the court was able to see the statement of defence filed for 2nd, 3rd,4th 5th, 6th, 7th, 8th, 26th,and 27th defendants. The gist of the defence of the aforementioned defendants is that 1st defendant subdivided the land through the laid down procedures, that the said subdivisions are the ones reflected in the official survey of Kenya map sheet No. 1 part of 148/2/15820 in RUIRU/KIU/BLOCK 2 (GITHUNGURI) and no. 5, part of 148/1/15 & 20 and also 149/1/16 &17 of RUIRU/KIU/BLOCK 2 (GITHUNGURI). Further the said defendants aver that plaintiffs are the ones in illegal occupation of the Suitland.

11. Service.

The issue of service of summons to enter appearance and the pleadings is quite murky. On 22/4/2002, the court had ordered that the following defendants be served by way of substituted service:

1. First Defendant – Githunguri Constituency Ranching Co. Ltd

2. Third Defendant – Margaret Wangui Gathu

3. Fourth Defendant – Njenga Kariuki

4. Fifth Defendant – Njenga Kariuki

5. Tenth Defendant – Esther Waithira Kinyanjui

6. Eleven Defendant – Ndirangu Macharia

7. Twelve Defendant – Peris Wambui Njihia

8. Thirteenth Defendant – Muriithi Mwangi

9. Fourteenth Defendant – Wangari Gichiri

10. Fifteenth Defendant – Mbugua Kionga

11. Sixteenth Defendant – John Kungu Njoroge

12. Seventeenth Defendant – James Karanya Ngige

13. Eighteenth Defendant – Simon Ngugi Mukundi

14. Nineteenth Defendant – Peter Joseph Chau

15. Twentieth Defendant – David Mutura Gocho

16. Twenty first Defendant – Francis Nganga Ndumbi

17. Twenty Second Defendant – Joseph Kinyua Ngeera

18. Twenty third defendant – Rosemary Njeri Mbaya

19. Twenty fourth defendant – Stephen Githae Njoroge

20. Twenty fifth defendant – James Nganga Kanyara

21. Twenty eight defendant – James Mburu Muiruri

22. Twenty nine defendant – Rebecca Waringa Njoroge

23. Thirtieth defendant – Lucia Wambui Kariuki

24. Thirty First Defendant – Chege Kigere

12. The Newspaper advert on record however does not have the names of:

Githunguri Constituency Ranching Co. (1st Defendant)

Margaret Wangui (3rd defendant)

Njenga Kariuki (4th defendant)

Njenga Kabuchi (5th defendant)

13. A request for interlocutory judgment was made (filed on 8/10/2012) but it is not clear whether this was endorsed or not.

14. By the time I was handling this matter on 22/3/2017, the defendants (2nd, 4th, 5th, 6th, 7th, 8th, 26th and 27th) were being represented by Muturi Njoroge Advocates. Present in court were a Mr. Kariuki Philip Gathenge as a director and Maina Mburu as chairman of the 1st defendant. The court directed that the trial was to proceed on 24/5/2017. Perhaps upon realizing that finally the case would be heard, 1st defendant engaged Kamango and Kamango Advocates a day earlier on 23/5/2017.

15. I am inclined to believe that the 1st defendant, those defendants who were served via substituted service as well as defendants represented by advocates have been aware of this suit.

16. With regard to the date of hearing of the suit, I find that there is an affidavit of service filed on 15/3/17 which clearly indicates that all concerned parties were served.

17. On 3/11/1999, Plaintiffs obtained a court order directing defendants not to evict the plaintiffs from the suit plots and not to alienate the said land.

18. It is also evident that many of the litigants herein are no longer in the picture. Vide a consent order of 24/1/2013, the suit in respect of 17th plaintiff was marked as abated. On 3/12/2013, 8th plaintiff filed a Notice to discontinue the suit. It is also on record that 25th plaintiff died and letters of administration were issued to one Veronica Wairimu Chege, who then was found to be senile and hence her nephew one Edward Kabera Kimuhu was appointed as her guardian ad litem on 9/7/12.

19. By the time the court was conducting pretrial directions on 16/5/17, Kinuthia Advocate was only representing 1st plaintiff.

20. Another notable aspect of the proceedings is the existence of an application filed on 8/2/2002 by 3rd to 8th, 26th and 27th defendants. In that application the defendants contended that the present suit is Res judicata in view of HCCC NO.2573 of 1988and the court of appeal case number 5 of 1998. The application was to be heard before Judge Hayanga who on 28/5/2003 noted that “this court has tried with difficulties to identify and follow the filed records with frustration. The file is shredding, documents are misfiled and follow no sequence ….I therefore stand over the hearing of the application to a date to be agreed upon by the counsels. Meanwhile, this file is to be placed before the Deputy Registrar of this court who will direct that it be re-organized and documents be filed afresh in several volumes to enclose proceedings in different enclosure for pleadings.”

21. 14 years later, the situation is worse, the file was never re-organized, the documents are in shambles and the application was never heard.

22. It is also noted that the proceedings herein have never been typed.

Some parts of the hand written record are torn while others are not discernible.

23. It is against this background that this court will proceed to frame the issues for determinations.

PLAINTIFFS’ CASE

24. Only 1st and 16th plaintiff presented their case during the trial.

Case for 1st plaintiff;

The 1st plaintiff was represented by an advocate during the trial. He relied on his statement dated 10/5/2012 filed on 10/5/2017 as his evidence. He states that he is a shareholder of Githunguri Constituency Ranching Co. Ltd, the first defendant which was formed in 1969 for the purposes of buying L.R.9314, 8897 and 10900/1 measuring about 7700 acres. He did buy shares in the Company whereby he paid Kshs.1660 for shares, survey and balloting. In 1975 it was resolved to divide the land amongst the shareholders. Ist plaintiff bought 2 shares and got share certificate No. 1088 dated 2/7/73 and balloted for plot No. 1088 measuring 1 ¼ acres. However, the parcel of land was found to be under power lines and so, he surrendered it and got land besides Ruiru river. This is where he put up a home and it is where his family resides. He has developed the land such that there are trees, biogas and other developments.

25. 1st plaintiff further states that the 1st defendant later subdivided this plot 1088 (the one occupied by 1st plaintiff) into sub plots Ruiru/Ruiru/East/Block 2/KIU/T114. T118, T119, T148, T149, T150, T151, T152, T146, T147 and allocated them as follows:

Plot No. T114 – to Wachuma Njoroge 2nd defendant

Plot No. T118 – to Margaret Wangui Gathu 3rd defendant

Plot No. T119 – to Njenga Kariuki the 4th defendant

Plot No. T148 – to Stephen Mbugua Mburu the 6th defendant

Plot No. T149 – Wathaiya Waira the 7th defendant

Plot No. T 150 – to Ngugi Kiai the 8th defendant

Plot No. T151 – Wanjiru Mathari the 9th defendant

Plot No. T152 – to Wanjiru Matheri the 9th defendant

Plot No. T146 – to Njenga Kabucho the 5th defendant

Plot No. T147 – to Njenga Kabucho the 5th defendant

26. 1st plaintiff contends that any registration of titles in respect of the parcel No 1088 should be cancelled.

27. In support of his case 1st plaintiff relied on documents itemized in his list of documents dated 9/5/17 filed on 10/5/17, which are;

1. Share certificate number 3203 and ballot No. 1088

2. Receipts for shares, water project etch

3. Surrender agreement of exchange of plaintiff’s fist allocation of land under rocky or power lines with another near the River Ruiru

4. Agreement of exchange of land allocation between the first plaintiff and the first defendant and others stating that the plaintiff will continue to retain his land near the Ruiru River and others will be shown land elsewhere.

5. Officials searches of defendants plot numbers

Defendant Name Plot No

1) Waciuma Njoroge T114

2) Margaret Wangui Gathu T118

3) Njenga Kariuki T119

4) Njenga Kabucho T146 & 147

5) Stephen Mbugua Mburu T148

6) Wamaitha Waira T149

7) Ngugi Kiai T150

8) Wanjiru Matheri T 151 & 152

9) Photographs of first plaintiff’s houses and developments in his plot no. 1088.

10) Memorandum of Articles of Association of the first Defendant (Article No. 93)

11) Replying Affidavit of former managing Director Elijah Ngugi Kimwaki sworn on 3/10/88.

12) Letter from the first defendant to the Commissioner of Lands.

13) Photocopy of first survey map showing surveyed plots along the Ruiru river.

Case for 16th plaintiff;

28. 16th plaintiff was unrepresented by the time he was testifying on 24/5/2017. He gave an account of the historical wrangles that have persisted in the 1st defendant. He got his land in 1980. He didn’t mention any shares, ballot or allotment number. The land was un surveyed.

29. He stated that in the initial stages the chairman of the company was one Waira Kamau. He was apparently not wanted by the shareholders. The District commissioner (Kiambu) and the then President Daniel Arap Moi (now retired) stepped in and caused some of the land to get titles. When the District Commissioner was transferred, the former chairman ( Waira Kamau) came back and the wrangles were refreshed all over again.

30. However it is during the era of a chair person called Waringa Njoroge that the parcels of land were divided into smaller portions. This plaintiff averred that he is always being moved from one parcel of land to another.

Defence Case

31. Only 2nd defendant testified. He is Julius Wachiuma Njoroge. He adopted a statement allegedly filed on 16/5/17 as his evidence. The said statement is however filed on behalf of 4th, 5th, 6th, 7th, and 8th and 27th defendants too.

32. The gist of the defence is that 1st defendant company was formed in 1969. It then bought about 8000 acres of land in Ruiru District. Members of the company then got their land through balloting and that is how defendants got their land.

33. It is further averred that some members including the plaintiffs failed to adhere to allocation rules and hence they (plaintiffs), moved to court in 1996, whereby their suit was dismissed. The appeal filed thereafter too was dismissed. Defence avers that the present suit is res judicata. 2nd defendant states that him and the mentioned defendants are the bona fide title holders of RUIRI EAST/KIU BLOCK 2/T.114, T118, T119, T146, T147, T148, T149 etc and that they have been deprived of usage of the entire parcels of land unlawfully.

34. DETERMINATION

I. Is the suit Res judicata

II. Are the plaintiffs entitled to the orders sought for herein

Res judicata.

35. It is not disputed that there existed the suit HCC NO 2573 of 1996, that the said suit was dismissed by Judge Kuloba on 31/7/1996 , that an appeal no 5 of 1998 was thereafter filed at the court of appeal and that this case was also dismissed.

36. The Res judicata issue was not canvassed in depth during the trial. The plaintiff while being cross examined stated that the suit was dismissed because the lawyers had an altercation with the trial Judge.

37. The documents appertaining to the previous suits are to be found in the application filed on 8/2/1998 (application to have the suit struck out as it is res judicata). This is the application that was never prosecuted.

38. I have perused the plaint in HCCC No 2573 of 1996, Nairobi, along with the Judgment thereof as well as the judgment in the court of appeal case no.5 of 1998. The content in the pleadings in the former suit and in the present suit are basically the same. The parties are the same. In both suits the bone of contention was the resolution made on 14/12/1986, which culminated in the surveying and subdivision of the land occupied or being claimed by plaintiffs and which land was apparently given to defendants.

39. The court of appeal decision in C.A NO.5 of 1998 delivered on 22/7/1998 reads as follows:

“The learned Judge acted judicially and reasonably and did not err in principle or otherwise in entering judgment as he did. We heard nothing in support of the appeal to disturb the learned Judge’s Judgment. There is no merit in the appeal and it is dismissed with costs”.

40. I find that the appeal case put to rest the issues that had been raised by the appellants. A fresh determination of the case would in essence be tantamount to disregard of the Court of Appeal decision. I make reference to the case of ThomasSambu vs. Paul Chepkwony ELC No. 54 of 2014, Kericho, where the court dismissed the suit on account of the fact that an earlier similar suit had been dismissed.

41. I therefore conclude that the present suit is res judicata in light of the verdict in the earlier proceedings.

42. It follows that the plaintiffs are not entitled to the prayers sought in the plaint.

43. Conclusion.

1)This suit is dismissed as the same is Res judicata to HCCC No.2573 of 1996 and Court of Appeal Case No. 5 of 1998.

2) Seeing that the two plaintiffs (1st and 16th) are very old and that they have been in the court arena for decades, the court will not penalize them on costs. I direct that each party bears their own costs of the suit.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2017

HON. L.N. MBUGUA

ELC JUDGE

IN THE PRESENCE OF:-

1. Wayala H/B for Mr. Kamanjo for 1st Defendant and H/B for Muturi Njoroge for 2nd, 4th 5th,6th.7th,8th,26th and 27th Defendants

2. 1st Plaintiff.