[2023] KEELC 18003 (KLR)

Kahuki (Deceased) & 3 others v Ng’ati (Environment & Land Case 62B of 2020) [2023] KEELC 18003 (KLR) (15 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18003 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment & Land Case 62B of 2020

JG Kemei, J

June 15, 2023

In The Matter Of Claim For Title To Land By Adverse Possession Over Title Number Limuru/Rironi/265 And In The Matter Of Extension Of Time To Apply For Joinder Of The Deceased 1St Plaintiff’S Legal Representative, Substitution Of The Deceased 1St Plaintiff & Revival Of The Deceased 1St Plaintiff’S Abated Suit Against The Defendant

Between

Elizabeth Wangui Kahuki (Deceased)

1st Plaintiff

Josiah Kamau Ng’ati

2nd Plaintiff

Winnie Muthoni Kahuki

3rd Plaintiff

Victoria Wangare Kahuki

4th Plaintiff

and

Henry Kahuki Ng’ati

Defendant

Ruling

The Chamber Summons dated July 21, 2022 1. The 2nd – 4th Plaintiffs/Applicants seek the following orders:-a.Be pleased to extend/enlarge time within which the Applicants will get the name of the 1st Plaintiff herein, Elizabeth Wangui Kahuki substituted with the names of the legal representative of the aforesaid deceased.b.Be pleased to substitute the name of Elizabeth Wangui Kahuki (now deceased) with the names of Winnie Muthoni Kahuki, Victoria Wangare Ngati and Josiah Kamau Ngati being the legal representatives of the aforesaid deceased, to enable them prosecute this suit to its conclusion.c.Be pleased to revive the suit to the extent related to the 1st Plaintiff herein claim against the Defendant, which abated by operation of law, on March 11, 2022, and the suit, as instituted by the 1st Plaintiff herein, be deemed as subsisting.d.Be pleased to grant leave to the Applicants to amend their pleadings relating to the suit to incorporate the legal representatives of the Estate of Elizabeth Wangui Kahuki.e.Any other orders as the Court deems fit to grant.f.Costs of this application be provided for.

2. The application is premised on the grounds set out as follows:a.The 1st Plaintiff died on March 11, 2021. b.About one (1) year and three (3) months have lapsed since the demise of the 1st Plaintiff herein and the suit by the 1st Plaintiff against the Defendant/Respondent thereby abated by March 11, 2022. c.The interim legal representatives of the estate of the 1st Plaintiff has since been appointed as per the Grant of Letters of Administration Ad Litem which were issued on June 7, 2022 to the 2nd, 3rd and 4th Plaintiffs herein to represent the estate of the deceased, for purposes of prosecuting the instant suit.

3. The application is supported by the Affidavit of Josiah Kamau Ngati sworn on July 18, 2022. He averred that the 1st Plaintiff died on March 11, 2021 and consequently the suit against her abated after one year. That the delay in substituting the deceased Plaintiff was brought about by the delay in obtaining Letters of Grant of Administration. The reasons adduced for the delay included financial constraints, lack of legal advice and lack of cooperation on the part of the Defendant.

4. The application is opposed by the Defendant/Respondent who filed Grounds of Opposition dated October 14, 2022 as follows:-a.The application is incompetent and an abuse of the process of the Court and the Defendant prays that it should be dismissed in limine.b.The abatement of a suit is by operation of the law which does not require an application by the Defendant.c.The delay in filing this application is inordinate and the Plaintiffs have not properly explained the delay.d.The Grant of Letters of Administration Ad Litem was procured by the Plaintiffs irregularly and without the Defendant’s consent, granted that the Defendant is equally a beneficiary of the Estate of the 1st Plaintiff.e.This suit is res judicata since the issues herein were determined bully and with finality in Milimani ELC (OS) 1042 of 2016 (Henry Kahuki Ngati Vs Peter James Mathu Mbugua & Kenya Commercial Bank Ltd) and hence it should be dismissed in its entirety.

5. In addition, the Defendant/Respondent filed a Replying Affidavit filed on October 14, 2022 wherein he deponed that he is the son of the deceased 1st Plaintiff. He faulted the Applicants for applying obtaining letter of administration in the estate of the deceased Plaintiff without any notice or his consent. That in the premises the purported Grant of Letters of Administration ad litem is irregular. In addition, the allegation of financial constraints adverted to by the Applicants are unproven and unsupported by any evidence. He argued that the delay in filing the application is inordinate and unexplained and urge the Court to disallow it. He was of the opinion that the suit property is not part of the estate of the deceased at all. He opined that the abetment of the suit is by operation of the law and therefore there is no need to file an application. The revival of the suit is baseless and is meant to create uncertainty against the ownership of the property.

6. Further the Defendant filed further Grounds of Opposition to the Originating Summons on the October 14, 2022 on the following grounds:-a.This suit is res judicata since the issues herein were determined fully and with finality in Milimani ELC (OS) 1042 of 2016 (Henry Kahuki Ngati Vs. Peter James Mathu Mbugua & Kenya Commercial Bank Ltd) and hence it should be dismissed in its entirety.b.The suit does not satisfy the threshold established Sections 7, 13, 37 and 38 of the Limitations of Actions Act, Chapter 22 of the Laws of Kenya for a claim of adverse possession.c.The suit is incompetent and an abuse of the process of the Court and the Defendant prays that it should be dismissed in limine.

The Applicants’ written submissions 7. The written submissions by the Applicants were filed on February 16, 2023 by the law firm of CNN Advocates LLP.

8. On the question as to whether the suit is res judicata the Applicants relied on the principles of res judicata as embodied on Section 7 of the Civil Procedure Act-'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent raised, and has been heard and finally decided by such Court.'

9. Equally the Applicant relies on the decision of Kenya Commercial Bank Vs Muiri Coffee Estate Limited & Another [2016]eKLR where the Court stated:-'Hence, whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case¾to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 Others, (2010) eKLR, under five distinct heads:i.the matter in issue is identical in both suits;ii.the parties in the suit are the same;iii.sameness of the title/claim;iv.concurrence of jurisdiction; andv.finality of the previous decision.'

10. It is the case of the Applicants that following the statutory provisions enumerated above the present suit together with the application is not res judicata for the following reasons; the parties in the present and previous suit are different; the Plaintiffs in the present suit were not parties in the previous suit; there are no similarities of cause of actions in the two suits; the Plaintiffs were in joint possession and occupation together with the Defendant; the Defendant concealed the fact of the occupation and possession of the Plaintiffs in the suit land.

11. As to whether the suit is abated the Applicants relied on provisions of Order 24 rule 3 (1) of the Civil Procedure Ruleswhich provides that an application for substitution of a deceased person should be lodged within one year of the death of the Plaintiff failure to which the suit by the deceased Plaintiff abates. The 1st Plaintiffs claim against the Defendant abated on March 11, 2022. This application was filed on July 21, 2022 three and a half months after the death of the 1st Plaintiff deceased. The Applicants argued that the provisions of Order 24 rule 3(2) of the Civil Procedure Rules empowers the Court to extend the term so as to allow the legal representatives of the deceased party to be enjoined in the suit. Furthermore, the Court has unfettered discretion to revive an abated suit under the provisions of Order 24 rule 7 of Civil procedure Rules on demonstration of sufficient cause of the delay. The Applicants averred that the delay was unintentional and attributed the delay of three and half months to factors that were outside their control. In addition they argue the oversight by their Counsel in advising them to pursue letter of grant of administration should not be visited on them. The letters of grant of administration were issued on June 7, 2022 and immediately thereafter the Applicants filed their application on July 21, 2022.

12. The Court was urged to be guided by the decision of the Court of Appeal in the case of Kishor Kumal Dhanji Varsani Vs Amolak Singh & 4 Others (2016)eKLR where the Court revived a suit that had abated for almost two years. The Court took the view that it would be unconscionable to lock out a party who has expressed serious keenness in processes proceeding in the case.

13. The Court was pointed to the decision of Peterson Gichohi & 2 Others Vs Maina Johana Miano alias Joseph Miana Miano [2016] eKLR where the Court revived a suit that had abated for fifteen years on the ground that the Counsel on record for the deceased failed to properly advise the deceased family and as a result the deceased was not substituted in accordance to the law.

14. The Court was urged that the Respondent will not suffer any prejudice if the application for substitution of the deceased 1st Plaintiff and the revival of the suit is allowed. In addition the Applicants submitted that the delay was inadvertent and thus excusable and urged the Court to accept the explanation tendered. The Court was urged to enlarge the time to allow for joinder and or substitution of the deceased 1st Plaintiff with the appointed legal representatives and further revive the abated suit.

15. It was submitted that the revival of this suit will not prejudice the Defendant since his defence will still be in place. In any case, the claim by the Applicants is still alive and there is no special prejudice that the Respondent will suffer if the Court allow the substitution. Furthermore, they will be no financial implications to be incurred by the Defendants and in any case, any justifiable costs can be compensated. On the other hand, it is the Applicants who stands to suffer prejudice if the application is not allowed for the reasons that; the claim of the deceased 1st Plaintiff is critical to this suit as it sets out the facts material and information specific to the deceased 1st Plaintiff; the deceased and the Applicants have protectable legal rights and recognisable interest over the suit property which they stand to lose if the entire suit is not heard on merits.

16. It was further submitted that a greater injustice will befall the Applicants if it turns out that the suit property belongs to the entire estate and not the Defendant. The Court was urged to balance the interest of all the beneficiaries to the suit property against that of the Defendant.

17. To buttress the Applicants relied on the following cases;Issa Masudi Mwabumba Vs Alice Kavenya Mutunga & 4 Others [2012]eKLR; Republic Vs Chairman Land Dispute Appeals Tribunal at Embu & Another Mathuva Mukemba (Interested Party); Ex-parte Kyunguti Muuki & Mbaika Kaviti Kyunguti [2019]eKLR; Abdirahman Abdi Vs Safi Petroleum Products Ltd & 6 Others [2011]eKLR; Peterson Gichohi & 2 Others Vs Maina Johana Miano alias Joseph Miana Miano [2016]eKLR and Kabui Njebere Vs Peter Maina Muriuki & 2 Others [2016]eKLR.

18. On the question whether the Grant of Letters of Administrations ad litem is valid, the Applicants submits that the right through the said grant is limited to the right of the Applicants to represent to the deceased 1st Plaintiff in this suit. The grant was rightfully and procedurally obtained from the Probate Court. The allegation by the Defendant that the grant was no valid is merely intended to mislead the Court in a forum that has no jurisdiction over succession matters.

19. In conclusion the Applicants urged the Court to grant the application.

The Respondent’s submissions 20. The submissions were filed by Macharia Nderitu & Co Advocates on April 14, 2023.

21. The Respondent submitted that the suit and the application are res judicata in view of the decision of the Court in ELC 1042 of 2016. The issue of adverse possession was determined in finality in that suit. The Respondent was adjudged as owner of the suit land in his personal capacity. That the proper recourse for the Applicants was to join the previous suit and participate as interested parties or as Plaintiffs alongside the Defendants. Interalia, the Applicants should have filed their claim against the Defendants in ELC 1042 of 2016 and not the current Respondents.

22. The Court was urged not to allow litigating parties to innovate in order to reopen matters that have been heard and concluded. That in excluding the Defendants in ELC 1042 of 2016 the Applicants are seeking to evade the doctrine of res judicata. In addition that the Applicants in filing this suit, are attempting to camouflage the subject matter of this suit as a new cause of action.

23. The Respondents submits that, though he has been in occupation of the suit property for more than twenty years, he was registered only four years ago, hence a claim of adverse possession becomes untenable. That there is no basis to found a claim of trust between the Respondents and the Applicants.

24. It was submitted that the application dated July 21, 2022 is not merited and should be dismissed with costs. The suit abated automatically upon the expiry of one year of the demise of the 1st Plaintiff, deceased. The Applicants were duly represented by Counsel hence cannot purport to be unfamiliar with the legal procedures relating to substitution of parties and abatement of the suit. The claim of financial constraints are speculative and unsupported. In addition the Applicants have not demonstrated sufficient cause for continuing the suit or continuing it on behalf of the 1st Plaintiff deceased. Furthermore the Applicants have not explained the inordinate delay in filing the application for substitution and revival of the abated suit. See the decision in Said Sweilem Gheithan Saanum Vs Commissioner of Lands (being sued through Attorney General) & 5 Others where the Court of Appeal stated as follows:-'Justice shall not be delayed' is no longer a mere legal maxim in Kenya but a constitutional principle that emphasizes the duty of the advocates, litigants and other Court users to assist the Court to ensure the timely and efficient disposal of cases. The principles which are reiterated by sections 1A and 1B of the Civil Procedure Act are intended to facilitate the just, expeditious, proportionate and affordable resolution of disputes. The principle cannot therefore be a panacea which heals every sore in litigation, neither is it a licence to parties to ignore or contravene the law and rules of procedure. We agree, with respect, with the learned Judge’s conclusion that the suit in the High Court was not properly handled by the appellant’s advocate. The Court cannot be invited to turn a blind eye in the face of such inordinate delay and in the absence of sufficient explanation. Likewise it cannot be fashionable for parties to blame their advocate and disclaim that the mistakes made by their advocates, who they have themselves appointed cannot be visited upon them. The warning of Madan JA in Belinda Murai & others Vs Amos Wainaina (1978) LLR 2784, reigns true today. He said:'A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by senior counsel. The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The Court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.'

25. The Respondent has extensively redeveloped the suit property since he became registered owner of the property. The intended substitution is likely to create uncertainty in regard to ownership, continued occupation and use of the property by the Respondent. Granting the orders sought will prejudice the Respondent who is in occupation and operates a business on the property.

26. As to whether the Grant of Letters of Administration is regular and valid, the Respondent submitted that the Applicants have conceded nor seeking prior consent of the Respondent before obtaining the grant. The grant is therefore irregular and invalid for excluding the consent of the beneficiary of the 1st Plaintiff deceased which beneficiary ranks in equal priority with the Applicants. The Respondent urged the Court not to ignore this *illegality even though it is not seized with jurisdiction to determine succession matters. See the case of Re Estate of Binti Hassan Salim Nzingo (2018)eKLR.

27. It was further submitted that the suit property is not and has never been part of the 1st Plaintiff’s deceased estate. The Court was urged to dismiss the suit and deem it res judicata viz a viz ELC NO 1042 of 2016. In support of his case, the Respondent relied on the following authorities; Kenya Commercial Bank Vs Muiri Coffee Estate Limited & Another [2016]eKLR; Henry Kahuki Ng’ati Vs Peter James Mbugua Mathu & Kenya Commercial Bank Limited [2017]eKLR; Said Sweilem Gheithan Saanum Vs Commissioner of Lands (being sued through Attorney General) & 5 Others [2015]eKLR and Re Estate of Binti Hassan Salimu Nzingo (Deceased) [2018]eKLR.

Analysis and determination 25. The key issues for determination are; whether the suit is resjudicata; whether the application for revival and substitution of the suit is merited; whether the letters of grant of administration is irregular and invalid; who meets the cost of the application.

Resjudicata 25. It is the Defendants case that the suit is resjudicata. A background of the claim is necessary. Vide an Originating Summons dated the July 8, 2020 the Plaintiffs/Applicants filed suit seeking interalia the following orders;a.THAT HENRY KAHUKI NG’ATI be declared to hold the suit premises known as LR Number LIMURU/RIRONI/265 in trust for himself and for the Plaintiffs herein.b.THAT in alternative a declaration that the Plaintiffs herein have jointly acquired LR Number LIMURU/RIRONI/265 by adverse possession.c.THAT an order do issue compelling the District Land Registrar Kiambu to register the Plaintiffs Elizabeth Wangui Kahuki, Josiah Kamau Ng’ati, Winnie Muthoni Kahuki, Victoria Wangare Ng’ati and Defendant Henry Kahuki Ng’ati as proprietors of LR NUMBER LIMURU/RIRONI/265. d.THAT the costs of these proceedings be borne by the Defendant.

25. It was the Plaintiffs’ case that Clement Gavid Ng’ati Kahuki, deceased, purchased the suit land in 1979 from one Peter James Mbugua Mathu and took possession in 1980 whereupon he settled his family including the Defendants thereon where they all lived upto 1999 when the deceased Clement developed another parcel in the neighbourhood and left their children , the Defendant included. That the loan subsisting on the property was repaid by the funds contributed from the Defendant and his siblings. That unknown to the rest of the family the Defendant secretly acquired the property by way of adverse possession without their knowledge. This was in the year 2019. That upon perusal of the ELC 1042 OF 2016, Milimani they discovered that the Defendant concealed material facts and information that is to say the rest of the beneficiaries of the estate of the late Clement in the suit.

26. The Defendant on the other hand has responded that the suit is resjudicata on account of the ELC 1042 of 2016. That the suit does not satisfy the threshold established under Sections 7, 13, 37 and 38 of the Limitations of Actions Act to found a claim of adverse possession. That the suit is incompetent and an abuse of the process of the Court and should be dismissed in limine.

27. Resjudicata is defined as:-'An issue that has been definitely settled by judicial decision the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties.'

25. The legal framework governing resjudicata is found in Section 7 of the Civil Procedure Act which states as follows:-'No Court shall try any suit or issue in which the matter directly and substantively in issue has been directly and substantively in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court'

25. The rationale of resjudicata is found in the case of Henderson v Henderson [1843] 3 Hare 100, 67, ER 313 which states as follows:-'Where a given matter becomes the subject of litigation in, and adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigations in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident omitted part of their case. The pleas of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time.'

25. For an objection raised on resjudicata to succeed, the following must be demonstrated:-a.There is a former judgement or order which was final.b.The judgement or order was rendered by a Court having jurisdiction over the subject matter and the parties, andc.There must be between the first and second action identical parties, subject matter and cause of action.

25. In line with the decision in Kenya Commercial Bank Limited (supra) the Court will now examine the suit against the previous suit to ascertain if the issues determined in the previous suit are similar, parties are same or having the same cause of action.

26. It was submitted by the Defendant that the matter is resjudicata on account of ELC 1042 OF 2016. In this case the Defendant sued James Mbugua Mathu, the original registered owner of the property to whom his deceased father bought the land from alongside Kenya Commercial Bank Limited who had lent money to Mathu. The cause of action was adverse possession. The suit was undefended. The Court having heard the Defendant on formal proof granted the orders in favour of the Defendant in its Judgment dated the December 14, 2017.

27. Flowing from the above it follows that the suit in ELC 1042 of 2016 did not involve the current Plaintiffs in this case though the subject matter is the same. I find that the causes of action in the current suit are also different in that, other than adverse possession, the issue of customary trust was not determined in the previous suit. It is also to be noted that the Defendant, then Plaintiff in the previous suit litigated on his own behalf and not under the claim of his deceased father.

28. On the above accounts the Court finds that the suit is not resjudicata.

Revival and substitution 25. Order 24, rule 3 - Procedure in case of death of one of several Plaintiffs’ or of sole Plaintiff. 3. (1) Where one of two or more Plaintiffs dies and the cause of action does not survive or continue to the surviving Plaintiff or Plaintiffs alone, or a sole Plaintiff or sole surviving Plaintiff dies and the cause of action survives or continues, the Court, on an application made in that behalf, shall cause the legal representative of the deceased Plaintiff to be made a party and shall proceed with the suit. (2) Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased Plaintiff is concerned, and, on the application of the Defendant, the Court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased Plaintiff: Provided the Court may, for good reason on application, extend the time.

26. According to the death certificate on record Elizabeth Wangui Kahuki, the deceased 1st Plaintiff died on the March 11, 1021. It therefore means the suit by the 1st Plaintiff deceased abated by March 11, 2022. The suit having been a land matter survived the 1st Plaintiffs death, that is to say, the cause of action continued to have a legal existence after the death of the 1st Plaintiff. The general rule is that suits and actions must be prosecuted by and against living parties. Since the deceased person cannot be a party to a legal proceeding the effect of the death is to suspend the action as to the deceased until the legal representative is substituted as a party. Unless and until such substitution is made within one year or by extension/leave of the Court any further proceedings in the case are void as to the deceased.

27. Under Order 24 rule 3(2) there must be an application for revival of the suit after abatement before substitution. An order for substitution before revival of the suit is a nullity. See the case of Kenya Farmers Coop Union Limited Vs Charles Murgor (deceased) t/a Kiptabei Coffee Estate (2005) eKLR. The Applicants have explained the reasons why the substitution was not made within the one year. The Court has not received any concrete evidence to rebut the same. The revival of the suit having been made 4 months later in my view is not inordinate.

28. The Defendant has contested the grant ad litem as being invalid and irregular. Section 2 of the Civil Procedure Act defines a legal representative as follows;'Legal representative means a person who in law represents the state of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.'The definition of the legal representative above is similar to the definition of a personal representative as defined under section 3 of the Law of Succession Act. A legal representative therefore is a person to whom a Grant of Letters of Administration in respect of the state of the deceased are issued. In this instant case letters of grant of administration ad litem (limited) were issued to the said Applicants in Succession cause No 54 of 2022 – Limuru. The letters were limited only to the purpose of substitution in ELC 62 OF 2020 (OS) THIKA with no powers to distribute the estate. In other words, the Applicants have been allowed to step into the shoes of the deceased 1st Plaintiff for purposes of this suit. In the absence of any decision by the Probate Court adjudging the grant to be invalid, the Court takes the grant as valid.

25. In the end the objection fails and the Chamber Summons dated July 21, 2022 is found to be merited.

26. Final orders for disposala.The suit is not resjudicatab.The order reviving the suit is allowed.c.Time be and is hereby extended for purposes of substitution of the deceased 1st Plaintiff.d.Winnie Muthoni Kahuki, Victoria Wangare Ngati and Josiah Kamau Ngati be and are hereby substituted in place of Elizabeth Wangui Kahuki.e.Parties being related I order that each meet their own costs.

25. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 15TH DAY OF JUNE, 2023 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;1st Plaintiff – DeceasedMs. Nyabuti for 2nd – 4th PlaintiffsNderitu for DefendantMs. Nyabuti for 1st, 2nd and 3rd Interested Parties / ApplicantCourt Assistants – Kevin & Lilian