[2024] KEELC 7026 (KLR)

Kirunyu (Suing as the administrator of the Estate of Stephen Kirunyu Macharia - Deceased) v Kinyanjui & 36 others (Environment & Land Case 190 of 2018) [2024] KEELC 7026 (KLR) (24 October 2024) (Ruling)

Neutral citation: [2024] KEELC 7026 (KLR)

Republic of Kenya

In the Environment and Land Court at Kajiado

Environment & Land Case 190 of 2018

LC Komingoi, J

October 24, 2024

Between

Margaret Muthoni Kirunyu (Suing as the administrator of the Estate of Stephen Kirunyu Macharia - Deceased)

Applicant

and

Konan Nyasai Ole Kinyanjui

1st Defendant

Rachel Wairimu Kibore

2nd Defendant

PJ Dave Flowers Limited

3rd Defendant

Wanjiru Properties Limited

4th Defendant

Karano Kibore

5th Defendant

Caroline Wanjiku Mugo

6th Defendant

Adelhelo Marie Bwire

7th Defendant

Carol Bwire Wanyama

8th Defendant

Eliud Chege Kiru

9th Defendant

Lucia Njoki Kibore

10th Defendant

Minnie Wanjira Kibore

11th Defendant

Romano Michubu

12th Defendant

Bondi Patrick Kinoti

13th Defendant

Allan Gitonga Muga

14th Defendant

Kairu Augustine Thuo

15th Defendant

Esther Wambui Kibore

16th Defendant

Carlos Jackson Nakuoh

17th Defendant

Benson Maina Gathia

18th Defendant

Allied (E.A) Limited

19th Defendant

Henry Maina Mwithiga

20th Defendant

Sd Investments Limited

21st Defendant

Ireland Investments Limited

22nd Defendant

Mercy Muthoni Mbuba

23rd Defendant

Wanjiru Properties Limited

24th Defendant

Monica Wambu Ngugi

25th Defendant

Mary Njeri Ngaruiya

26th Defendant

Abdisalan Maalim Ali

27th Defendant

Salome Wanja Nderitu

28th Defendant

Multi Holdings Investments Co Ltd

29th Defendant

Joseph Ngigi Nyamu

30th Defendant

Grace Mwihaki Ngigi

31st Defendant

David Muraguri Muriithi

32nd Defendant

Munthe Investments Limited

33rd Defendant

Mathew Kipkoech Kimoning

34th Defendant

Benjamin Lawino Maina

35th Defendant

Land Registrar, Kajiado

36th Defendant

Hon Attorney General

37th Defendant

Ruling

1. This Notice of Motion application dated 13th February 2024, brought under: Article 159 (2)(d) of the Constitution, Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Order 45 Rule 1(1) of the Civil Procedure Rules and all other enabling provisions of Law seeks:i.That the Hon. Court hereby clarifies that the suit lands referred to in this Hon. Court’s inhibition Order of 1st July 2019 are the following:Title Number Kajiado/Kisaju/56 and all parcels and/or subdivisions resulting therefrom including title numbers Kajiado/Kisaju/2454, 2455, 2459, 2473, 2474, 2675, 2676, 2677, 2678, 2710, 2711, 2712, 2796, 2797, 2798, 2823, 2824, 2825, 2873, 2960, 2961, 2962, 2965, 2966, 2967, 2891, 2892, 3054, 3055, 3056, 3057, 3058, 3059, 3060, 3061, 3066, 3067, 3068, 3069, 3070, 3071, 3072, 3073, 3074, 3075, 3076, 3077, 3078, 3079, 3080, 3081, 3082, 3083, 3084, 3085, 3086, 3087, 3088, 3089, 3090, 3091, 3092, 3093, 3094, 3095, 3096, 3097, 3098, 3099, 3100, 3101, 3102, 3103, 3104, 3105, 3106, 3107, 3108, 3109, 3110, 3111, 3112, 3113, 3114, 3115, 3116, 3117, 3118, 3119, 3120, 3142, 3143, 3625, 3626, 3627, 3628, 3633, 3634, 3635, 3640, 3641, 3642, 3643, 3644, 5335, 5336, 9492, 9493, 3602, 3603, 3604, 3605, 3726, 3727, 3728, 3802, 3803, 3804, 3805, 3806, 3811, 3812, 3813, 3814, 3815, 3816, 3817, 3818, 3819, 4535, 4536, 4537, 4538, 4539, 4540, 4541, 4542, 4545, 4546, 4547, 4548, 4549, 4550, 4551, 4552, 4704, 4705, 4706, 4707, 4708, 4709, 4710, 4711, 4712, 4713, 4714, 8135, 8136, 8137, 11356, 10619, 10620, 11357, 11358, 13061, 13062,13063, 13064, 13065, 13066, 13067 and 13068 and any further parcels and/or sub - divisions arising therefrom.ii.The costs of this application be in the cause.

2. This application supported by the sworn Affidavit of the applicant Margaret Muthoni Kirunyu is on the grounds that on 1st July 2019, this Court issued an inhibition Order against the suit lands pending the hearing and determination of this suit. However, her Advocate upon trying to register the Inhibition order on 25th January 2024, was informed by the Land Registrar (the 37th Respondent) that he was unable to register the order on the basis that it did not specify the affected properties. The Applicant averred that if the inhibition is not registered, the properties were at a risk of being alienated which would affect the substratum of the suit.

3. The 1st and 17th Respondents in their replying affidavit dated 18th June 2024, though incomplete, sought that the application be dismissed with costs to them on grounds that it was brought several years after the inhibition order was granted in 2019 which was inordinately late. Adding that it was not clear on what grounds the inhibition order was granted.

4. The 3rd and 4th Defendants did not oppose the application while the other Defendants did not file their response.

5. This application was canvassed by way of written submissions but at the time of writing this ruling, the said submissions had not been filed. They were neither on the Court Tracking System nor in the court file.

Analysis and determination 6. I have considered the Notice of Motion, the affidavits in support and the response thereto, the rival submissions, the authorities cited and find that the issues for determination are:i.Whether the application dated 13th February 2024 is merited;ii.Who should bear the costs of this application?

7. When this matter came up for mention, Counsel for the 1st and 17th Respondents submitted that the application should be dismissed on grounds that it was brought inordinately late. Counsel for the Applicant submitted in open court that they came on record for the Applicant late last year and that is when they started following up on the matter.

8. In the replying Affidavit, the 1st and 17th Respondents also contested that the application was brought inordinately late and the status of the properties may have been overtaken by events over the years. On this ground the court wishes to draw attention of the parties to the doctrine of lis pendens which aims to preserve the status quo of a property by preventing any dealings with it during the pendency of the suit. The Court of Appeal in Dhanjal Investments Limited v Shabaha Investments Limited [2022] KECA 366 (KLR) held that: “…Lis pendens literally means ‘litigation pending’ or ‘pending suit’ and is drawn from the maxim “Pendente lite nihil innovature”, which means that nothing new must be introduced while a litigation or suit is pending. Therefore, what the doctrine entails is that the property which is subject matter of a suit shall not be transferred during pendency of the suit, and it prevents transfer of the title of any disputed property without the Court’s consent…”

9. This doctrine thus protects and safeguards rights of parties by maintaining the status quo.

10. Counsel for the 1st and 17th respondents also argued that it was not clear on what grounds the orders dated 1st July 2019 were issued and what the suit lands made reference to. This court has perused the court file and the pleadings and note that the lands listed in this application are the same parcels of land listed in the Plaint. Therefore the suit lands could only be in reference to the lands listed in the pleadings.

11. I note that, the said order dated 1st July 2019 has neither been appealed against nor set aside. As such, it stands as a valid order of the court. The Order reads:1. …2. That the inhibition order be and is hereby registered against the suit lands pending the outcome of the suit.3. …

12. Therefore, having found that it is a valid order, this court finds that the prayer to have the inhibition order specifying the particular parcels of land affected is merited.

13. The Application dated 13th February 2024 is hereby granted and ordered that:i.The Inhibition Order be and is hereby registered against the following parcels of land pending the outcome of this suit: Title Number Kajiado/Kisaju/56 and all parcels and/or subdivisions resulting therefrom including title numbers Kajiado/Kisaju/2454, 2455, 2459, 2473, 2474, 2675, 2676, 2677, 2678, 2710, 2711, 2712, 2796, 2797, 2798, 2823, 2824, 2825, 2873, 2960, 2961, 2962, 2965, 2966, 2967, 2891, 2892, 3054, 3055, 3056, 3057, 3058, 3059, 3060, 3061, 3066, 3067, 3068, 3069, 3070, 3071, 3072, 3073, 3074, 3075, 3076, 3077, 3078, 3079, 3080, 3081, 3082, 3083, 3084, 3085, 3086, 3087, 3088, 3089, 3090, 3091, 3092, 3093, 3094, 3095, 3096, 3097, 3098, 3099, 3100, 3101, 3102, 3103, 3104, 3105, 3106, 3107, 3108, 3109, 3110, 3111, 3112, 3113, 3114, 3115, 3116, 3117, 3118, 3119, 3120, 3142, 3143, 3625, 3626, 3627, 3628, 3633, 3634, 3635, 3640, 3641, 3642, 3643, 3644, 5335, 5336, 9492, 9493, 3602, 3603, 3604, 3605, 3726, 3727, 3728, 3802, 3803, 3804, 3805, 3806, 3811, 3812, 3813, 3814, 3815, 3816, 3817, 3818, 3819, 4535, 4536, 4537, 4538, 4539, 4540, 4541, 4542, 4545, 4546, 4547, 4548, 4549, 4550, 4551, 4552, 4704, 4705, 4706, 4707, 4708, 4709, 4710, 4711, 4712, 4713, 4714, 8135, 8136, 8137, 11356, 10619, 10620, 11357, 11358, 13061, 13062,13063, 13064, 13065, 13066, 13067 and 13068 and any further parcels and/or sub - divisions arising therefrom.ii.Costs of this application shall abide the outcome of the suit.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 24TH DAY OF OCTOBER 2024. L. KOMINGOIJUDGE.In the Presence of:Mr. Otieno for the Plaintiff.Mr. Owiti for the 1st, and 17th Defendants.Mr. Njogu for the 12th, 31st and 35th Defendants.Ms. Mureithi for the 3rd, 4th Defendants.Court Assistant – Mutisya.