[2022] KEELC 4820 (KLR)

Kenda Investment & another v Maharud & 4 others (Environment & Land Petition E023 of 2021) [2022] KEELC 4820 (KLR) (20 September 2022) (Ruling)

Neutral citation: [2022] KEELC 4820 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Petition E023 of 2021

MD Mwangi, J

September 20, 2022

IN THE MATTER OF: IN THE MATTER OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: ARTICLES 2, 3(1), 10, 19, 20, 21. 22. 23, 40. 47 48, 50, 159(2) AND 162(2) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: ARTICLE 17 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND IN THE MATTER OF: ARTICLE 14 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS AND IN THE MATTER OF PROTECTION OF RIGHT TO PROPERTY PURSUANT TO ARTICLE 40 OF THE CONSTITUTION AND IN THE MATTER OF: ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 27, 40, 47, 60(1)(B) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: DEPRIVATION OF LAND PARK PARCEL NO. 209/11092/69 CITY PARK ESTATE (LATER REFERRED TO AS NAIROBI BLOCK 37/87 IN NAIROBI CITY COUNTY, BY AN ACT OTHER THAN COMPULSORY ACQUISITION. CITY

Between

Kenda Investment

1st Petitioner

Teresia Wairimu Kirima

2nd Petitioner

and

Soraya Maharud

1st Respondent

Sumaya Mahira Murad

2nd Respondent

Nairobi City County Government

3rd Respondent

Chief Land Registrar

4th Respondent

Ministry oof Land, Housing & Urban Development

5th Respondent

Ruling

Background 1. The two Petitioners in this matter filed a petition dated June 29, 2021seeking various reliefs, namely: -a)A declaration be issued holding that the proprietary interest of the suit premises that is plot number 62 on LR No. 209/11092/69 at Nairobi City Park Estate also known as Nairobi Block37/87 vests in Kenda Investments Limited.b)A declaration order be issued holding that the title document issued to Murad Abdallah Islamand held by the 1st Respondent and 2nd Respondent having been issued by the 3rd, 4th and 5th Respondents with respect to all that land known as Plot Number 62 on LR No.209/11092/69 at Nairobi City Part Estate also known as Nairobi Bolck 37/87 is illegitimate, unlawful and tantamount to an infringement of the petitioners’ right to property as enshrined in article 40 of the Constitution and contravened in the petitioners’ right to fair administrative action as enshrined in article 47 of the Constitution of Kenya.c)An order be issued calling before the court for quashing, the titled document held by the 1st and 2nd Respondents and the Land Register held by the 3rd, 4th and 5th Respondents for all that land known as Plot Number 62 on LR No.209/11092/69 at Nairobi City Part Estate also known as Nairobi Bolck 37/87. d)A declaration order be issued holding that failure of the 3rd, 4th and 5th Respondents to take any action in relation to complaint’s lodged with them by the petitioner amounted to a breach of the petitioner’s fundamental right to a fair administrative action as enshrined under article 47 of the constitution and a breach of the national values and principles as enshrined under article 10 of the Constitution.e)A declaration order be issued holding that the 1st and 2nd Respondents actions of issuing threats to enter and consequently entering the suit premises, evicting tenants therein, and later attempting to gain full entry and start construction on the suit property are express violations to the petitioners’ right to property as provided for under article 40 of the Constitution.f)This Honourable Court do grant, an order for compensation for the infringement of the petitioner’s rights.g)This Honourable court to order that costs of this petition be borne by the Respondents.

2. Alongside the petition, the Petitioners filed a Notice of Motion Application of even date seeking to restrain the Defendants/Respondents from entering into, fencing off, excavating on or in any other way interfering with the Petitioners’ possession of all that property known as Plot No 62 on L.R. No 209/11092/69 Nairobi City Park Estate also known as Plot No. Nairobi/Block 37/87, pending the hearing and determination of the suit. The Petitioners also sought orders that the proceedings and all the orders issued in Nairobi Kadhi’s Court succession cause No 10 of 2019 be stayed pending the hearing and determination of this suit.

3. The basis of the Petitioners’ application is that they own the suit property and have been in possession and actual occupation of the said land until the 1st and 2nd Respondents appeared with an order of the Kadhi’s Court indicating that the property belonged to their deceased kin. The Petitioners allege that the 1st & 2nd Respondents on June 24, 2021 entered into the suit property and destroyed the fence, brought in an excavator and started to illegally excavate in the suit property. The Petitioners therefore seek the preservation of the suit premises pending the hearing and determination of the petition.

4. The Application is supported by the affidavit of Teresiah Wairimu Kirima, the 2nd Petitioner sworn on the June 21, 2021. The deponent reiterates the averments in the petition narrating how the 1st Petitioner acquired the suit property from the defunct City Council of Nairobi. The Deponent alleges that the 1st Petitioner was allocated the suit property on 1st March 1980.

5. It is alleged that the 1st Petitioner complied with all the conditions in the allotment letter by paying the requisite allocation fee. It is the deponent’s case that the suit property was thereafter converted from City Park Plot 62 to Nairobi/Block 37/87. The deponent insists that the 1st Petitioner was at all material times in possession of the suit property until the 1st & 2nd Respondent armed with a court order from the Kadhi’s Court Nairobi forcefully entered the suit premises and started excavating.

Responses by the Respondents. a) Response by the 1st & 2nd Respondents. 6. The 1st & 2nd Respondents opposed the application by the Petitioners by way of Grounds of Opposition dated December 21, 2021, two replying affidavits sworn by Soraya Murad on December 21, 2021 and Sumaya Mahira Murad sworn on December 21, 2021 and a Preliminary Objection against the entire petition terming the petition filed herein as time-barred, frivolous and vexatious and an abuse of the court process.

b) Response by the 3rd Respondent. 7. The 3rd Respondent is the Nairobi City County Government. On its part the 3rd Respondent’s response to the application by the Petitioners was by way of a replying affidavit sworn by Eric Obwao on March 23, 2022, Grounds of opposition dated March 22, 2022 and a notice of preliminary objection of even date.

C. Response by the 4th & 5th Respondent. 8. Both the 4th &5th Respondents are represented by the Office of the Attorney General. Their response to the Petitioner’s Application was by way of a Preliminary Objection dated March 24, 2022. The thrust of their Preliminary Objection is that the claim against them by the Petitioners is time barred by virtue of the provisions of section 7 of the Limitation of Actions Act, Cap 22 Laws of Kenya.

Court’s Directions. 9. The court’s directions were that the Application by the Petitioners be canvassed alongside the 3 Preliminary Objections raised by the respondents and by way of written submissions. All parties have complied and filed their submissions which this court has had the opportunity to ready through.

Issues for determination. 10. Upon careful perusal of the pleadings filed by the Petitioners including the application under consideration, the responses by the Respondents and the Preliminary Objections raised, the court is of the view that the issues for determination in this matter are merely two: -i.Whether the Petition by the 2 Petitioners is an abuse of the process of court.ii.Whether the 2nd petitioner has the locus to institute this petition.

11. The issue whether the Petitioners’ claim is time barred or not shall be considered alongside the first issue.

Analysis and Determination A. Whether the Petition by the 2 Petitioners is an abuse of the process of court. 12. The fact that there are or have been other cases involving the suit property, the subject matter of this petition is clearly discernible from the Petitioner’s pleadings. At paragraph 33 of the Petition, the Petitioners plead that they, ‘and other individuals not party to this suit have been involved in a myriad of Civil Suits in defending properties that comprise of Nairobi/Block 37’. They have listed the matters as:-i.In Milimani HCCC NO. 1065 of 2003 Mohammed Abdi Guhad Vs Gerishon Kamau Kirimawas successful as Plaintiff withdrew the suit with costs to the Defendants.ii.Milimani HCCC No. 622 of 2011 Mohammed Sheikh Hussein vs Capital Cars And Trucks Limited, the Defendant/Applicant a lessee of the petitioner was seeking eviction and vacant possession which the plaintiff was seeking eviction and vacant possession which matter culminated in the Plaintiffs’ suit been dismissed with costs to the Defendant by Justice R Ougo, Ruling dated June 12, 2012. iii.Milimani Elc Petitione 45 Of 2017 Catheirne Njeri Macharia, Rachel Wachuka Ndei and Teresia Wairimu Kirima (suing on behalf of the Estate of the Late Fredrick Kirima Kamau And Samuel Ndei Kamau (deceased) vs Peter Munyiri Kaka Arina, Nairobi City County Government And Chief Land Registrar: is still ongoing.iv.Milimani CMCC Suit No. 624 of 2012 Mohammed Sheikh Hussein vs Capital Cars And Trucks Limited; the Plaintiff was seeking damages for trespass and an order of eviction against the Defendants (who were tenants of the petitioner) was stayed pending hearing and determination of Milimani HCCC No. 622 of 2011. v.Nairobi Elc 1458 of 2014 Ramuka Agencies Vs Stephen Kamau Kirima; still ongoing.

13. Earlier on, at paragraphs 25-28, the Petitioners averred that around the year 2003, they suspected fraudulent dealings concerning the suit property when third parties started making claims to the property. A search on the title disclosed that the suit property had been fraudulently and unlawfully registered as Nairobi Block 37/87 under the Registered Land Act and a title issued to one Cascade Enterprises Ltd. The 1st Petitioner filed a suit against Cascade Enterprises being Nairobi Civil Suit No. 1037/2003 (Kenda Investments Ltd-vs- Nairobi City Council and Cascade Enterprises Ltd). The Suit was later numbered 1188/2007 and in the Petitioners own words, is still on-going, and there has been a status quo order in place.

14. The Petitioners further contend that the 1st & 2nd Respondents have a title claiming that the suit premises belonged to one Morad Abdalla Islam, now deceased.

15. At paragraph 28, the Petitioners aver that the 1st and 2nd Respondent moved the Kadhi’s Court at Nairobi to have an order barring the Petitioners from utilizing their rightfully owned property.

16. In the affidavit supporting the Application by the Petitioners, the 2nd Petitioner at paragraph 8 thereof deposes that the 1st Petitioner was in possession and actual occupation of the suit property until the 1st & 2nd Respondent enjoined the 1st Petitioner in a suit at the Kadhi’s Court claiming that ‘the suit premises belonged to their deceased kin, one Morad Abdalla Islam who is said to be deceased, and are now purporting to distribute the Estate’. The suit property forms part of the Estate of the deceased Morad Abdalla Islam. The 1st Petitioner attached a copy of the certificate of confirmation of grant from the Nairobi Kadhi’s Court Succession Cause No. 10 of 2019 marked ‘TK 4’.

17. From the responses by the 1st & 2nd Respondent, it is clear that Morad Abdalla Islam (deceased) acquired the suit property from Cascade Enterprises Ltd. The 1st & 2nd Respondents are the administrators of his estate.

18. Despite the ‘myriad of suits’, the Petitioner still went ahead to file this petition. This is one of the reasons why the Respondents refer to Petition as an abuse of the process of court. The second reason is that the claim by the Petitioners is time-barred.

19. The Respondents have cited a number of decided cases to argument their submissions on the issue of abuse of the process of court.

20. In the case of Kimunya – Vs- Mohammed & Another(2022) KEEL 2264 (KLR), the court cited with approval the Court of Appeal dictum in Muchanga Investment Ltd –vs- Safaris Unlimited (Africa) Ltd & 2 others (2009) eKLR where the court stated that,“The term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive!”

21. The court went on to find that the Applicant (in the case) was abusing the court process by opting to file a fresh application instead of filing an application to reinstate the earlier one that had been dismissed.

22. TheBlack’s Law Dictionary, 6th Edition on the other hand defines abuse as,“everything which is contrary to good order established by usage that is a complete departure from reasonable use.”

23. In the case of Godfrey Paul Okutoyi (suing on his own behalf and on behalf of and representing and for the benefit of all past and present customers of Banking institutions of Kenya –vs- Habil Olaka - Executive Director (Secretary of the Kenya Bankers Association being sued on behalf of Kenya Bankers Association) and Another(2018) eKLR, the court held that;“In the case of Muchangi Industries Ltd –Vs- Safaris Unlimited (Africa) Ltd & 2 others, the court of Appeal stated that the person who abuses process is interested only in accomplishing some improper purposes that is collateral to the proper object of the process and that offends justice.And in Governors Balloon Safaris Ltd –Vs- Attorney General & 2 others (supra) the court stated that ‘It is an abuse of the court process to institute several proceedings in order to challenge the same action and the court has inherent jurisdiction to prevent such abuse. Bearing in mind the above jurisprudence, it is not in doubt, that the Petitioner filed this petition after he failed in his quest in HCCC No 433 of 2003 and wanted to try his luck in this court. This is clearly an abuse of the court process that should not be tolerated.”

24. Mativo J (as he then was) in the case of Satya Bhama Gandhi –vs- Director of Public Prosecutions & 3 others(2018) eKLR, was categorical that,“it is trite law, that the court has an inherent jurisdiction to protect itself from abuse or to see that its process is not abused.”

25. Mativo J, observed that, “the situations that may give rise to an abuse of court process are indeed in-exhaustive……it involves situations where the process of court has not been or resorted to fairly, properly honestly to the detriment of the other party.”

26. ‘Abuse of court process in addition to the above arises in the following situations:a)Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.b)Instituting different actions between the same parties simultaneously in different courts even though on different grounds.c)Where 2 similar processes are used in respect of the same right for example a cross appeal, and a respondent notice.d)Where an application for adjournment is sought by a party to and action to bring another application to court for leave to raise issue of fact already decided by the court below.e)Where there is no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.f)Where a party has adopted a system of forum shopping in the enforcement of a conceived right.g)Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the court of appeal.h)Where 2 actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the annoyance or irritation of an opponent.’

27. As I have already pointed out, the petitioners filed this petition acutely aware of the existence of the other cases. They were at one point in time, as they admit in their pleadings, parties in the case before the Kadhi’s Court in Nairobi involving the subject matter of this petition. The Kadhi’s court emphatically stated that:“I have no doubt in my mind that from the evidences adduced, (that) the property in question belong to the late Murad. This is very clear from the copy of the title and official search certificate.”

28. The petitioners have not approached this court by way of an appeal from the decision of the Kadhi’s court nor by way of judicial review proceedings challenging the legality of the decision of the Kadhi’s court. They have filed a fresh case by way of this petition seeking amongst other orders, the revocation of the title held by the 1st and 2nd Respondent for all that land known as plot number 62 on LR No. 209/11092/69 at Nairobi City Park Estate also known as Nairobi Block 37/87.

29. There is also the case against Nairobi City Council and cascade enterprises Ltd which the petitioners have in their pleadings confirmed is ongoing. This is the case, Nairobi Civil Suit No. 1037/2003 (Kenda Investments Ltd-vs- Nairobi City Council and Cascade Enterprises Ltd).

30. Cascade Enterprises Ltd was the entity that transferred the title to the suit property to the estate of Murad Estate of Murad Abdallah Islam according to the Petitioners. The 1st and 2nd Respondents are the Administrators of the said Estate. All that the Petitioners needed to do was to seek to join the 1st and 2nd Respondent in the ongoing case instead of filing a fresh case. The alleged fraud according to them was committed by Cascade Enterprises Ltd who thereafter transferred the title to the late Murad Abdallah Islam.

31. The filing of this case is a clear abuse of the court process. As already noted earlier on, this court has an inherent jurisdiction to protect itself from abuse and/or ensure that its process is not abused. The only way to do that is to strike out the petition herein with costs, which I hereby do. Consequently, the application by the petitioners is as well hereby struck out with costs.

32. There is another aspect which I must address in this ruling. The question I pose is why the petitioners found it necessary to file a constitutional petition to address what they refer to in paragraph 25 of their petition as ‘fraudulent and unlawful registration of title’.

33. All the Respondents, from their responses, seem to be in agreement that the reason why the petitioners opted for a constitutional petition rather than an ordinary civil suit was to circumvent the issue of limitation of time against their claim. I agree with the Respondents. The Petitioners claim is time-barred. The Petitioners at paragraphs 25-28, of their petition pleaded that around the year 2003, they suspected fraudulent dealings concerning the suit property when third parties started making claims to the property. They conducted a search that revealed that the suit property had been fraudulently and unlawfully registered as Nairobi Block 37/87 under the Registered Land Act and a title issued to one Cascade Enterprises Ltd. The cause of action then arose in the year 2003 when the Petitioners allegedly ‘discovered’ the fraud. This again amplifies the Respondents’ claim of abuse of the process of court by the Petitioners.

34. Whatever their reason was for opting not to file an ordinary civil suit, the jurisprudence in this country is now well settled to the effect that a court should not entertain a constitutional matter though it may be properly before it where there exists some other basis upon which the case may be determined. This is the ‘principle of avoidance’ also known as ‘constitutional avoidance’.

35. The supreme court of Kenya while upholding the doctrine of constitutional avoidance in the case of Communication Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 Others(2014) eKLR made reference to the South African case of S. vs. Mhlungu1995 (3) SA 867 (CC) where Kentridge AJ articulated the principle of avoidance in a minority judgement in the following words: -“I would lay it down as a general principle that where is it possible to decide any case, civil or criminal without reaching constitutional issue, that is the course which should be followed.”

36. The supreme court further quoted with approval the holding by the US Supreme Court in the case of Ashwander vs Tennessee Valley Authority, 297 U.S. 288, 347 (1936) that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of.

37. The Petitioner claim of fraudulent registration of title in this matter should be by way of an ordinary civil suit where the allegations of fraud would be specifically pleaded and particularized in accordance with the law.

38. I further find that this petition is an abuse of the process of the court for violating the doctrine of constitutional avoidance. I would strike it out with costs for that reason as well.

39. I find it befitting at this juncture to quote directly from the decision of the court in the case of Satya Bhama Gandhi –vs- Director of Public Prosecutions & 3 others (supra), where the court stated that;“It is settled law that a litigant has no right to pursue paripasu two processes which will have the same effect in two courts either at the same time or at different times with a view to obtaining victory in one of the processes or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks.”

B. Whether the 2nd Petitioner has the locus standi to institute the petition. 40. At paragraph 2 of the petition, the 2nd petitioner is described as ‘a female adult of sound mind, & a shareholder of Kenda Investment Ltd’ which is the owner and has been in possession of the suit property. Kenda Investments Ltd, on the other hand is described as a limited liability company incorporated in the Republic of Kenya.

41. It is a principle well established in law since ancient times that a limited liability company is a separate legal entity independent of its shareholders and directors. It has the capacity to sue and be sued on its own independent of its directors and shareholders. That was the unanimous holding of the House of Lords in the well-known case of Salomon vs A. Salomon & Co. Ltd ( 1897) AC.

42. From the petition, the suit property is allegedly owned by Kenda Investment Ltd.

43. In the case of Arthi Highway Developers Ltd vs WestEnd Butchery Ltd & Others (2015) eKLR, the Court of Appeal quoted with approval the holding of Lord Denning M.R in Moir vs Wallersteinerr (1975) 1 ALL ER 849 at p. 857, where he stated that: -“It is a fundamental principle of our law that a company is a legal person with its own corporate identity, separate from its directors or shareholders and with its own property rights and interests to which alone it is entitled. If it is defrauded by a wrongdoer, the company itself is the one person to sue for the damage.”

44. The company itself is the only one that can sue on its own behalf.

45. The court’s finding therefore is that the 2nd petitioner lacks the locus standi to institute the petition as she did.

Conclusion. 46. In conclusion, the entire petition and the Notice of Motion Application dated June 29, 2021 is hereby struck out with costs to the Respondents.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF SEPTEMBER 2022. M.D MWANGIJUDGEIn the Virtual Presence of:-Ms. Keli Mwinzi for the PetitionersMr. Jama for the 1st and 2nd RespondentsMs. Kerubo for the 4th and 5th RespondentsN/A for the 3rd RespondentCourt Assistant: HildaM.D MWANGIJUDGE