[2017] KEHC 3309 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 293 OF 2009

LEONARD GICHURU……………………………………….………APPELLANT

VERSUS

FREDERICK WAWERU KINYANJUI………………………………. RESPONDENT

RULING

1. Before this court is a notice of motion filed on 28th December, 2016 and amended on 23rd January, 2017. The applicant seeks the following orders:

a) The applicant Peter Muiruri, Kenya Power & Lighting Company Ltd and the County Surveyor, Kiambu County be enjoined in this suit as an applicant and respondents respectively.

b) The Kenya Power & Lighting Co. Ltd be restrained from trespassing on the applicant’s land KARAI/KARAI/5353 (‘the land’) by digging and erecting electric posts without the applicant’s knowledge and consent, despite being furnished with the orders of this court, declaring the land as belonging to the appellant, and if any electric poles have been erected on the land to be removed forthwith.

c) That the Land Registrar, Kiambu County be compelled by an order of mandamus to reinstate the boundary in terms of the orders of this court in the judgment of 8th February, 2012.

d) That the County Surveyor Kiambu County be compelled by an order of mandamus to reinstate the boundary in terms of the orders of this court in the judgment of 8th February, 2012.

2. The motion is supported by the grounds on the body of the same and the supporting affidavit of Peter Muiruri sworn on 23rd January, 2017. The reason advanced for the prayer for enjoinment is that both the appellant and the respondent are deceased. That by the time of their death the case was for all practical purposes, over except the reinstatement of the boundary to its original position by the surveyor and land registrar, Kiambu County, in accordance with judgment and orders of Hon. Judge Ang’awa (as she then was) delivered on 8th February, 2012. The applicant indicated that he has since the appellant’s death been the registered title holder of the land. That since the land registrar has been slow to implement the court order, and Kenya Power & Lighting Company Limited has been asked not to refix power lines without heeding, it is necessary to enjoin the two as respondents in this suit. He contended that Kenya Power and Lighting Company Ltd is clearly trespassing on the land and he is unable to construct a house on the land. He averres that there is no justification for Kiambu County officials to take such a long time to implement the court order and their action has caused him considerable psychological and financial loss. He contended that neither of the suggested respondents will suffer prejudice if so enjoined.

3. In response to the motion, the intended interested party filed a preliminary objection on the following grounds:

(a) That the application offends the explicit provisions of order 1 rule 14 and therefore ought to be dismissed.

(b) That the applicant lacks locus standi, is a stranger to the suit and to the interests of the deceased appellant and the application in its totality therefore offends the provisions of order 22 rule 12, read together with sections 45 and 54 of the Law of Succession Act and rule 14 of the 5th Schedule of the Subsidiary Legislation under the Law of Succession Act, Laws of Kenya.

(c) That this court lacks jurisdiction and the suit offends the mandatory provisions of section 6 (1), 63 (1) (I), 107, 108 and 110 (1) of the Energy Act read together with rule 2 and 4 of the Energy (Complaints and Disputes Resolution) Regulations 2012 thereof.

(d) That the suit is therefore incompetent, incongruous, inept and vexatious and ought to be forthwith dismissed.

4. In rebuttal, the applicant filed a reply to the preliminary objection. He contended that he could still have audience of court for the reason that order 1 rule 14 is not couched in mandatory terms; that he has locus standi to be enjoined and that this court’s jurisdiction is unlimited and cannot be limited by a subsidiary legislation.

5. The motion was dispensed with by way of written submissions which were a reiteration of the averments herein above.

6. The respondent relied on Re Estate of Ndiba Thande (Deceased) [2013] e KLR and John Kasyoki Kieti v. Tabithe Nzivulu Kieti & another [2001] e KLR where the courts were of the view that only a holder of a grant of representation has authority to handle the property of a deceased. On jurisdiction, the respondent cited Alice Mweru Ngai v. Kenya Power & Lighting Co. Ltd [2015] e KLR, Safmarine Container NV of Antwerp v. Kenya Ports Authority Mombasa [2012] e KLR and Joseph Njuguna Mwaura & others v. Republic [2013] eKLR. It was argued that to the extent that it is not only the Constitution that can confer jurisdiction but also any other law may by express provision confer or limit jurisdiction.

7. The applicant contended that he has come to court not as a legal representative as was in the case of Thande and Kiteti (supra) but as a title holder to the land. On Alice Mweru Ngai (supra) case, the applicant stated that no notice was given to him despite informing KPLC of its trespass. On the issue of jurisdiction, it was submitted that this case is distinguishable since the provisions of KPA are different from KPLC.

8. The court has considered the preliminary objection and the submissions by the respective parties. The respondent avers that the application offends the provisions of order 1 Rule 14 of the civil procedure Rules, that the applicant has nolocus standi and is a stranger to the suit, that the court has no jurisdiction to entertain the application and for these reasons, it is submitted that the application is incompetent, incongruous, inept and vexatious.

9. The applicant has sought to be enjoined in the suit as the applicant on one hand and Kenya Power & Lighting Company and the County Surveyor, Kiambu County as the respondents. Order 1 Rule 10 (2) is the relevant provision on substitution and addition of parties and it provides;

“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined whether as plaintiff or defendant, or whose presence is necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit be added”.

Order 1 Rule 14 is clear on when an application for joinder can be brought. It provides as follows;

“Any application to add or strike out or substitute a plaintiff or defendant may be made to court at any time before trial by chamber summons or at the trial of the suit in a summary manner”.

10. My understanding of order 1 Rule 14 is that such an application as is referred to in paragraph 9 above, can only be made before the trial or at the trial of the suit. The appeal herein was heard and determined in the year 2012 and therefore there are no pending proceedings and the only issue that is pending is the execution of the decree which was passed in favour of the appellant and who is now deceased. The Applicant wishes to be enjoined in the suit purely for purposes of enforcing the decree

The question that one needs to ask is, can the applicant benefit from a decree issued in proceedings in which he was not a party? The answer to this question lies in the provisions of order 22 Rule 12 of the Civil Procedure Rules which provides thus;

“Where a decree or if a decree has been passed jointly in favour of two or more persons, the interest of any decree - holder in the decree is transferred by assignment in writing or by operation of the law, the transferee may apply for execution of the decree to the court which passed it, and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder”.

11. From the record, there is no evidence that the decree was jointly issued. The applicant was not a party to the proceedings that culminated to the issuance of the decree that he now seeks to execute. He cannot benefit from a decree issued in proceedings to which he was not a party. The position, however, would have been different if he was seeking to be substituted with the Applicant/deceased in which case, he would be required to have a grant of letters of administration. Without the said letters, the applicant would not have the locus standito enforce the decree issued to the deceased.

12. On the issue of jurisdiction, the respondent has contended that the court has no jurisdiction to entertain the application as the suit offends the provisions of sections 6(1), 63(1)(1), 107,108 and 110 (1) of the Energy Act Cap. 314 laws of Kenya. The said Act under section 4, establishes the Energy Regulatory Commission.

Section 6 provides for the powers of the commission. Under subsection (L), the commission has powers to investigate complains or disputes between parties with grievances over any matter required to be regulated under the Act.

13. Section 46 of the Act is clear that no person shall enter upon any land, other than his own;-

(a) To lay or connect an electric supply line; or

(b) To carry out a survey of the land for the purpose of paragraph (a) except with the prior permission of the owner of the land. The permission sought in subjection (1) shall be done by way of notice which shall be accompanied by a statement of particulars of entry. The applicant herein avers that the intended interested party did not serve him with a notice as required herein above an assertion that has not been denied and in the absence of such denial, I take it that no such notice has been issued. In the circumstances aforesaid, it is my considered opinion that this court would have jurisdiction to deal with the application with regard to the orders sought against Kenya Power & Lighting Company Limited. The jurisdiction of the court would only be ousted if notice is issued as required in the Act, otherwise the alleged encroachment is illegal as the same is done without due process and this clothes the court with jurisdiction. But then, one may ask, would KPLC be the right party to seek orders against? Section 4 of the Energy Act, describes the commission as a body corporate with perpetual succession capable of suing and being sued. This therefore means that the right entity to be sued would be the Energy Regulatory Commission.

14. Having made the above observations, I find and hold that the preliminary objection dated 9th January, 2017 has merits and the same is allowed as prayed. The applicant’s amended notice of motion dated 28th December, 2016 is hereby struck out with costs to the intended interested party.

Dated, signed and delivered at Nairobi this10thday of July, 2017

…………………

L. NJUGUNA

JUDGE

In the presence of:

……………………………………………..for the Applicant

………………………………………………for the Respondent