[2023] KEHC 20169 (KLR)

Komen v Lagat & OCS Kaptagat & another (Miscellaneous Civil Application E139 of 2022) [2023] KEHC 20169 (KLR) (14 July 2023) (Ruling)

Neutral citation: [2023] KEHC 20169 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Civil Application E139 of 2022

JRA Wananda, J

July 14, 2023

Between

Charles Kibet Komen

Applicant

and

John Lagat & Ocs Kaptagat

1st Respondent

Kenya Commercial Bank Limited

2nd Respondent

Ruling

1. Before the Court are two Applications both filed by the Applicant. It was agreed by the parties that the Applications, being related, would be heard and determined together and one Ruling delivered for both. The Applications were therefore consolidated.

2. The Applicant is acting in person and as a result, his pleadings have not been drawn in a manner that is so well organized or articulated and are quite confusing. It is not even clear what precise prayers he is seeking.

3. The 1st Application is the Notice of Motion dated 23/08/2022 which basically seeks that the 2nd Respondent be compelled to discharge and release the title to the property known as Title No. Mosop Kapchorua/799 (suit property) to the Applicant, that the 2nd Respondent be compelled to refund to the Applicant a sum of Kshs 1,500,000/- with interest, that the Applicant be restored to the business he used to operate in the suit property and that the Applicant be awarded Special damages of Kshs 450,000/-, general damages, costs and interest. He has also referred to an earlier suit, Eldoret E and LC No. 384 of 2015 but has not explained anything further about it nor its effect, implication or relationship to the present suit. There is also no Affidavit filed in support of the Application.

4. The 2nd Application is dated 9/02/2023. In this Application, the Applicant seeks orders that the Lands Registrar, Elgeyo Marakwet County be ordered to remove cautions placed on the suit property. He then again refers to the said case No. 384 of 2015 which he states was filed on 13/10/2015 and dismissed on 7/12/2022. For this Application, the Applicant has attached a Supporting Affidavit in which he deponed that the “Plaintiffs/Respondent herein” filed this suit as No. 384 of 2015 on 13/10/2015, after “enactment” of the Environment and Land Court the same was transferred to this Court for hearing and final determination and that the suit was dismissed for want of prosecution.

5. I also observe that in the title to his pleadings, the Applicant has consistently referred to this case as both and/or interchangeably as “Eldoret High Court Misc Application No. 139 of 2022” (which is the correct title) and also as “Environment & Law Court Case No. 384 of 2015”. There is however no explanation for this confusing, mix-up and obviously wrong titling.

6. Further, in the title to some of his pleadings, the Applicant has also inexplicably referred to this instant case as “Eldoret High Court Misc Application No. 139 of 2022 formerly Environment & Law Court Case No. 384 of 2015”. There is also no explanation for this incomprehensible titling since I have nowhere come across any indication that this suit was formerly or at any point in time handled as “Environment & Law Court Case No. 384 of 2015”.

7. From the above, it is evident that the Applicant’s pleadings suffer from significant incoherence and ambiguity.

8. However, to the Affidavit, the Applicant has exhibited a copy of an Order made on 7/12/2022 in Eldoret Environment & Land Court Case No. 384 of 2015 – Kipkosgei Surma Buigut & Joan J. Lagat (suing as the legal representatives of the estate of the late Joel Kiprono Kipkoti versus Charles Kibet Komen.

9. I believe that the Applicant is the Defendant named in the said Environment & Land Court Case No. 384 of 2015. I also note from the Order that the Defendant therein (Applicant herein) had a counterclaim in which he named the Kenya Commercial Bank Limited (a Respondent herein), as the 7th Defendant therein.

10. I also note that in his counterclaim in the said Environment & Land Court Case No. 384 of 2015, the Applicant herein had sought a declaration that his transaction in respect of the suit property together with the shop business and building thereon and motor vehicle registration number KAB 162X are genuine.

11. For ease of reference, I will refer to the said Environment & Land Court Case No. 384 of 2015 as the “ELC Suit”.

12. I also note that the said Order was made by Hon. Justice S. M. Kibunja and it dismissed the ELC suit on the ground that the Plaintiff therein failed to prove his claim against the Defendant (Applicant herein). The Order also states that Defendant’s counterclaim partially succeeded and issued a declaration that the Defendant (Applicant herein) obtained registration of the suit property lawfully and regularly.

13. From the foregoing, I can deduce that the Applicant’s case is that having been declared in the ELC suit as having lawfully obtained the suit property, the title to the suit property should now be discharged and released to him and that he be paid a refund and damages.

14. It is also not clear why the OCS Kaptagat Police Station and one Joan Lagat have been sued jointly as “1st Respondent” yet the two are obviously different and separate entities. I however note that the Advocates for Joan Lagat have in their pleadings continuously described her as the “1st Respondent” and the Advocates for Kenya Commercial Bank Limited have also in their pleadings described it as the “2nd Respondent”. I will therefore, for ease of reference, adopt the same descriptions.

15. I adopt the said descriptions because the other party sued herein as a Respondent, OCS Kaptagat Police Station, does not appear to have filed anything in this matter nor did he at any time even attend Court. This is despite there being a Notice of Appointment filed by the Attorney General on behalf of a party described as the “1st Respondent” whom I believe is meant to refer to the OCS Kaptagat Police Station. I also note that there are several Affidavits of Service in the file indicating that the Attorney General was served on several occasions but did not file any response or attend Court.

16. I may also mention that there are various other items, including letters, pleadings, documents and other correspondence and written communication from the Applicant which are in the Court file. However, the same have not been brought or filed with leave of the Court or brought via Affidavits or through any other acceptable procedure. Further, they are not even copied to the other parties or even drawn as intended to be served upon the other parties. The same are therefore unprocedurally and irregularly in the Court file and I will ignore them.

17. Another matter worth mentioning is that on 6/03/2023, the Applicant filed a document titled “Withdrawal Notice” but the contents in the body of the document are again incomprehensible and ambiguous. On 25/04/2023 when the parties appeared in Court, the Applicant alluded to having withdrawn the case against Kenya Commercial Bank Limited. However, when I sought confirmation and clarity from him on this point, he appeared undecided about the issue. I therefore let the matter rest.

1st Respondent’s Replying Affidavit 18. The 1st Respondent opposed the Applications by filing the Replying Affidavit sworn by herself on 2/03/2023. The same was filed through Messrs Nyekwei & Co. Advocates. In the Affidavit, it is deponed that although the Application indicates that the same was formerly known as Eld HCCC No. 384/2015, at no point in time was Eldoret No. 384/2015 renamed Eld HC Misc. 139/2022 or Eld HC Misc 139/2023,

19. Counsel further submitted that it would appear that the Applicant is seeking orders for enforcement of a decree issued in a separate suit, that it would also appear that the Applicant is seeking orders against an entity which is not a party in these proceedings and that the Applications are alien in law and the orders sought cannot be granted in the circumstances.

2nd Respondent’s Preliminary Objection & Replying Affidavit 20. On its part, the 2nd Respondent opposed the Application by filing the Notice of Preliminary Objection dated 21/02/2023 and also the Replying Affidavit sworn on 20/02/2023 by one Lilian Sogo who described herself as the 2nd Respondent’s Head Counsel - Litigation.

21. In the Preliminary Objection filed through Messrs Mburu Maina & Co. Advocates, the 2nd Respondent has submitted that without the benefit of a substantive suit, the proceedings herein are unknown in law as a Notice of Motion cannot originate a suit in a vacuum hence the current Application offends the provisions of Order 3 Rule 1 of the Civil Procedure Rules 2010, regard being given to the fact that the Application seeks mandatory orders of injunction against the Respondents.

22. It was submitted further that this Court lacks the jurisdiction to grant the orders sought as the substratum of the Application relates to use and occupation of land which is exclusively reserved for the Environment & Lands Court under Article 162(2)(b) of the Constitution.

23. It was also submitted that the Application is frivolous, fatally incompetent and an abuse of the Court’s process as the Environment & Lands Court in the ELC suit has rendered a final Judgment on the rights and interest of the parties over the suit property..

24. In the Replying Affidavit, it was deponed that the Application dated 23/08/2022 is, inter alia, bad in law, incompetent and an afterthought, the loan facility under which the suit property was offered as collateral towards its repayment is still outstanding hence the Application for the discharge of the suit property is misplaced, the dispute over ownership of the suit property was determined in the said ELC suit and the Court has rendered a final Judgment, the same can only be challenged on Appeal or Review thus rendering the Application incompetent, in light of the already delivered Judgment, this Court lacks the jurisdiction to handle the matter and grant orders relating to the use and occupation of the suit property, without the benefit of a substantive suit, the proceedings herein are unknown in law, a Notice of Motion cannot originate a suit in a vacuum regard being had to the fact that the Application seeks mandatory orders of injunction, the Applicant has not established any cause of action against the 2nd Respondent.

25. A copy of the Judgment referred to, dated and delivered on 7/12/2022 by Hon. Justice Kibunja in the said ELC suit has been exhibited to the Affidavit.

Hearing of the Applications 26. Pursuant to directions given, the Appeal was canvassed by way of written submissions. The Applicant filed his Submissions on 24/04/2022 while both the 1st and 2nd Respondents filed theirs on 23/05/2023.

Applicant’s Submissions 27. In his Submissions, the Applicant has stated that the Submissions are in respect to a Notice of Motion dated 16/12/2022. There is however no such Application in the Court file. By the directions given on 25/04/2023, it is crystal clear that the Applications in issue and upon which Replying Affidavits followed by written Submissions were to be filed were the Applications dated 23/08/2022 and 9/02/2023. It is therefore incomprehensible why and how the Applicant is referring to an alien Application that does not exist.

28. The matters and prayers referred to in the Submissions are also totally different from those appearing in the two Applications the subject of this Ruling. This is because the Submissions refer to prayers for restraining the Respondents from trespassing on the suit property, prayers for eviction against the Respondents, prayers for orders compelling the Respondents or authorizing the Applicant to demolish structures erected in the suit property, orders directing the OCS Kaptagat Police Station to provide security during the eviction or demolition.

29. It is therefore evident that the Applicant’s submissions refer to totally different matters not before this Court. I suspect that the Applicant has been treating this instant matter, “Eldoret High Court Misc. Application No. 139 of 2022” as one and the same as the said “Eldoret ELC Case No. 384 of 2015”. Since the Application referred to in his Submissions is nowhere in this Court file, I suspect that he has been filing pleadings interchangeably in both Court files under the mistaken belief that the two are one and the same. It is therefore very likely that on the basis of such mistaken belief, he erroneously filed the Application that he has referred to in his Submissions at the Eldoret Environment & Lands Court.

1_st Respondent’s Submissions 30. On his part, the 1st Respondent’s Counsel submitted that the Applicant is hell-bent on misleading the Court in that he has described these proceedings as being “formerly Eldoret High Court Civil Suit No. 384 of 2015”. According to Counsel, Eldoret Environment and Land Court Case No. 384 of 2015 has never been renamed as Misc Application No. 139 of either 2022 or 2023, ELC No. 384 of 2015 was before the ELC Court and has never been transferred to the High Court to be renamed as a Miscellaneous Application and that the Applicant should desist from purporting to enforce the decree in the ELC suit through this Miscellaneous Application. Counsel also submitted that there is a misdescription of parties aimed at misleading the Court.

31. Counsel also observed that the Applicant is seeking orders against the Land Registrar, Elgeyo Marakwet County to remove cautions placed on the suit property and that the Applicant states that the suit property was the subject matter of the ELC Case No. 384 of 2015. Counsel submits that in the circumstances, the prayers ought to have been sought in the ELC suit. He maintained that this Court is bereft of jurisdiction to grant the prayers since orders for removal of a caution on land is a preserve of the Environment & Land Court.

2nd Respondent’s Submissions 32. On his part, the 1st Respondent’s Counsel submitted that the two Applications before Court are quite confusing to say the least and do not in clear terms express the orders that the Applicant is seeking.

33. Counsel stated that the Application dated 23/8/2023 gave birth to these proceedings and the same appears to be a hybrid of a Notice of Motion and a Plaint, the Applicant introduces the proceedings in the manner of a Notice of Motion through the words that “Take Notice That ….. for Orders that …. “, and thereafter seeks some prayers at the end of the pleadings in the manner of a Plaint through the words “Reasons Whereof I pray for Judgment against the Defendant for”. Counsel adds that the Application is not supported by any Affidavit or annextures to lay basis to the orders sought hence it lies in a vacuum.

34. Further, Counsel states that despite the unprecedented nature of his pleadings and the confusion it has brought with it, he can discern that the Applicant is seeking orders that the suit property be discharged from KCB liability, an order for refund of Kshs 1,500,000/-, special damages of Kshs 450,000,000/-, general damages, costs and interest. Counsel added that grounds of the Application show that the Applicant is referring to an earlier suit filed that according to him was filed at the Eldoret High Court in Civil Suit 384 of 2015, this is wrong and a clear case of the Applicant misleading the Court given that the case was filed and determined by the Environment and Land Court as can be seen from the Decree annexed to the Applicant’s Supporting Affidavit.

35. Counsel submitted further that this Court lacks jurisdiction to handle a matter, the dispute relates to land use and occupation hence the reason the Applicant is seeking orders of eviction and removal of cautions, even the Application dated 9/02/2023 is stated to be brought under the provisions of the Environment and Land Court Act, this clearly shows that the Applicant is aware that there is a Court of competent jurisdiction empowered to deal with the issues, secondly, the Environment and Land Court has delivered a Judgment in the dispute between the parties and the Judgment being in force, any ancillary issues arising from such determination ought to be determined by the same Court, the Applications seek to enforce a Decree issued by the Environment and Land Court and are therefore an abuse of the Court’s process, the Applicant has approached the wrong forum and this Court ought to down its tools to allow the Environment and Land Court to continue adjudicating any arising issues.

36. Counsel also submitted that the Applicant has filed the proceedings through a Miscellaneous Application and among many orders sought are orders for the discharge of charge registered in favour of the 2nd Respondent, removal of cautions and for eviction of the 1st Respondent from the suit property and even orders against the Elgeyo Marakwet County Land Register who is not a party which move is against the rules of natural justice, the orders sought are substantive in nature and the same cannot be issued in a miscellaneous Application. He cited the case of Rockland Kenya Limited v Commissioner General of the Kenya Revenue Authority & Another [2020] eKLR where the Judge cited with approval the case of Witmore Investment Limited v County Government of Kirinyaga & 3 Others [2016] eKLR.

37. According to Counsel therefore, both Applications are irremediably fatally defective and both should be struck out.

Analysis & Determination 38. Upon considering the Applications, the Record and the parties’ submissions, I find the following to be the issues that arise for determination herein:i.Whether this Court has jurisdiction to handle the present Applications.ii.Whether the Applications before Court are fatally defective.iii.Whether this Court should grant the prayers sought in the Applications.

39. I now proceed to analyze and answer the issues.

i. Whether this Court has jurisdiction to handle the present matter 40. An objection to the jurisdiction of the Court has been cited as one of the preliminary objections that consists a point of law. Indeed the locus classicus case on the question of jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S”(supra) where the Court held as follows:“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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

41. In Kenya, the Environment and Land Court (ELC) is a statutory creation of the Constitution under the provision of Article 162(b). From the preamble to the ELC Act, the jurisdiction of the Court is defined as follows:“…… a Superior court to hear and determine disputes relating to the environment and the use and occupation of, and the titles to, land and to make provisions for its jurisdiction functions and powers and for connected purposes……”

42. Under Sections 4 and 13(1) of the ELC Act, that Court has the legal mandate to hear any matter related to environment and land (see also the Supreme Court decision in Petition No. 5 of 2015 - Republic vs. Karisa Chengo & 2 Others [2017] eKLR).

43. It is evident that the matters raised in the two Applications relate to “land use and occupation”. This is because the Applicant is seeking orders for eviction and removal of cautions from the suit property. As correctly pointed out by the Respondents, even the Application dated 9/02/2023 is stated to be brought under the provisions of the Environment and Land Court Act. I therefore find that the matters raised and orders sought herein are a preserve of the Environment and Land Court Act under Article 162(2)(b) of the Constitution. This Court therefore lacks the requisite jurisdiction.

44. In any event, it is also apparent that the Applications seek to enforce a Judgment delivered by the Environment and Land Court in Eldoret Environment & Land Court Case No. 384 of 2015. This being the case, I agree with the Respondents that ancillary and consequential issues arising from the Judgment or seeking enforcement thereof ought to be filed before the same Court. On this further ground, I also agree that in the circumstances, the Applicant has placed his claims before the wrong forum and as a result, this Court lacks jurisdiction to entertain the Applications. The Applicant’s remedy, if any, lies for determination before the Environment and Land Court whose Judgment he seeks to enforce or give effect to.

ii. Whether the Applications before Court are fatally defective 45. As I had already observed, the Applicant is acting in person and it might be as a result of this that his pleadings have been drawn in a manner that is so confusing with lack of clarity and organization. Indeed, it is very difficult to identify or grasp what precise prayers he is seeking. As I had already observed, the Applicant’s pleadings suffer from incoherence and ambiguity.

46. The Applicant has described these proceedings as being “formerly Eldoret High Court Civil Suit No. 384 of 2015”. However, there is no record whatsoever indicating that this matter has at any time been handled as “Eldoret Environment and Land Court Case No. 384 of 2015 and neither is there any indication that this matter was transferred here from the ELC Court. The description adopted by the Applicant is therefore not only misleading but also incomprehensible.

47. As argued by the Respondents, it is also true that the Applications appear to be hybrids of Notices of Motion and Plaints at the same time since the prayers made in the Motions such as those for orders for eviction, discharge and release of charge, special damages and general damages are substantive prayers that would only make sense if sought by way of a substantive suit in which even viva voce evidence may be necessary, not via a Miscellaneous Application as the present one.

48. I agree with the Respondents that without the benefit of a substantive suit, the proceedings herein are unknown in law as a Notice of Motion cannot originate a suit of this nature in a vacuum. The Applications therefore offend the provisions of Order 3 Rule 1 of the Civil Procedure Rules 2010. In respect to this point, Hon. Justice Azangalala, in Peter Kwema Kahoro vs Benson Maina Githethuki [2005]eKLR, stated as follows :“….. the only objection which has caused me anxiety is the one directed at the manner in which the applicants have originated these proceedings. Section 19 of the Civil Procedure Act provides as follows:-“19. Every suit shall be instituted in such manner as may be prescribed by rules”.And Order IV Rule 1 of the Civil Procedure Rules reads:-“1. Every suit shall be instituted by presenting a plaint to the Court or in such other manner as may be prescribed”. The Civil Procedure Rules provide other modes of instituting proceedings. These include mattes that may be instituted by way of Originating Summons or Motions, Applications for Judicial Review and proceedings under Advocates Act. In the light of the above, I am not persuaded that the Applicants were entitled to institute these proceedings by way of a Chamber Summons in a miscellaneous application. Being of this persuasion I find and hold that the application dated 2nd February, 2005 and filed on 4th February, 2005 in incompetent and it struck out with costs”.

49. For similar holdings, I also refer to the decision of Hon. Justice Limo in Witmore Investment Limited v County Government of Kirinyaga & 3 Others [2016] eKLR, decision of Hon. Justice J. Sergon in Nairobi West Hospital Limited v Joseph Kariha & Another [2018]eKLR, decision of Hon. Lady Justice J. Kamau in Anastacia Wagiciengo v Ezekiel Wafula [2018] eKLR and also the decision of Hon. Lady Justice Okwany in Rockland Kenya Limited v Commissioner General of the Kenya Revenue Authority & another [2020] eKLR.

50. Further, the Applicant is seeking orders that the Lands Registrar be directed to remove cautions lodged against the suit property yet he has not even joined the said Registrar or even the person(s) who lodged the cautions as parties to these proceedings. To this end, the Applications are also fatally defective.

51. As I had also already observed, I deduce that the Applicant’s case is that having been declared in the ELC suit as having lawfully obtained the suit property, the title to the suit property should now be discharged and released to him and that he be paid a refund and damages. As already posed, he has not however addressed or explained how the liability of the Respondents that he has joined in the present suit arises. In short, the Applicant has not demonstrated any cause of action of action whatsoever against the Respondents.

52. As I had also observed, there is no explanation why the OCS Kaptagat Police Station and one Joan Lagat have been sued jointly as “1st Respondent” yet the two are obviously different and separate entities.

53. In view of all the foregoing defects, I find that the Applications are incompetent and seriously flawed and also that the incompetence thereof is not such that they can be cured under the provisions of Article 159(2)(d) of the Constitution of Kenya. This is because the flaws are so substantive, go to the root of the matter and are not therefore mere procedural technicalities that this Court can overlook or excuse.

54. For the above reasons, I find that the Applications are incompetent and fatally defective. I therefore do no need to determine or belabour the third issue.

Final Orders 55. In the premises, I issue the following orders:i.The 2nd Respondent’s Preliminary Objection dated 21/02/2023 is found to be merited and is accordingly upheld.ii.Both the Notice of Motion dated 23/08/2022 and the Notice of Motion dated 9/02/2023 filed by the Applicant are struck out with costs to the two Respondents who participated in these proceedings, Joan Lagat and Kenya Commercial Bank Limited.iii.This filed is now marked as closed.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 14TH DAY OF JULY 2023. ........................WANANDA J. R. ANUROJUDGE