[2022] KEELC 2049 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT NAIROBI

ELC SUIT NO. 557OF 2009

MACHETHA KARIUKI..............................................................................1ST PLAINTIFF

WAMBUI NJOROGE..................................................................................2ND PLAINTIFF

WAMBUI NJAU...........................................................................................3RD PLAINTIFF

MARIA KAROKI........................................................................................4TH PLAINTIFF

NYAMBURA KABIA..................................................................................5TH PLAINTIFF

NJERI MUNYAO........................................................................................6TH PLAINTIFF

NJERI MBINDYO......................................................................................7TH PLAINTIFF

(Suing on their behalf and as representatives of Kasarini Farmers Co-operative Society)

VERSUS

SAMUEL GITHEGI MBUGUA............................................................1ST DEFENDANT

GRACE MUTHONI GITHEGI............................................................2ND DEFENDANT

SAMUEL MBUGUA KIBATHI...........................................................3RD DEFENDANT

MARGARET NYOKABI MBUGUA..................................................4TH DEFENDANT

RUTH NJERI KABOGO.....................................................................5TH DEFENDANT

MOSES MBUGUA MWANGI............................................................6TH DEFENDANT

CHRISTINE MITHIRI MBUGUA....................................................7TH DEFENDANT

ZACHARIAH KIMEMIA GAKUNJU..............................................8TH DEFENDANT

MARY WARURII GAKUNJU...........................................................9TH DEFENDANT

COMMISSIONER OF LANDS.......................................................10TH DEFENDANT

REGISTRAR OF TITLES, NAIROBI...........................................11TH DEFENDANT

RULING

What is before the court is the 2nd to 7th plaintiffs’ Notice of Motion application dated 5th September 2019 brought under section 3 of the Environment and Land Court Act, 2011 and all other enabling provisions of the law seeking an order that this suit be transferred to the Environment and Land Court(ELC) at Thika for hearing and final determination. The application which is supported by the affidavit of the 2nd plaintiff, Jacinta Wambui Njoroge sworn on 5th September 2019 was brought on the following grounds; the property the subject of this suit is situated in Kiambu County within the territorial jurisdiction of the court to which the suit is sought to be transferred, the suit is likely to be heard more timeously on account of lesser backlog in the ELC at Thika, it is in the interest of justice that the order be granted considering that the matter has been pending hearing for 10 years and that none of the parties would suffer prejudice if the order is granted.

In her affidavit in support of the application, the 2nd plaintiff has stated that this court is overburdened by matters mostly emanating from Kiambu County which are yet to be transferred to the ELC at Thika and that the plaintiffs are apprehensive that any more delay in the determination of this suit would diminish their chances of finally getting justice. The 2nd plaintiff has stated that if this suit is transferred to the ELC at Thika, there are chances that it would be heard faster. The 2nd plaintiff has reiterated that no party would suffer prejudice if the suit is transferred to the ELC at Thika.

The application is opposed by the 4th, 8th and 9th defendants and the interested parties. The 4th defendant has opposed the application through grounds of opposition dated 15th May 2020. The 4th defendant has contended that the application is scandalous, frivolous, vexatious and amounts to an abuse of the process of the court. The 4th defendant has contended that the application is yet another attempt by the plaintiffs to cause unreasonable delay in the conclusion of this suit. The 4th defendant has averred that the plaintiffs are yet to comply with the pre-trial directions that were given by the court on 11th October 2017. The 4th defendant has contended further that there is no suit pending which is capable of being transferred to the ELC at Thika for hearing. The 4th defendant has contended that the suit herein was to a large extent filed by deceased persons against deceased persons. The 4th defendant has averred that in a ruling delivered on 13th June 2019, the court ordered that this suit had abated as against the 1st, 3rd, 5th, 6th, 7th, 8th and 9th defendants. The 4th defendant has contended that the application is an attempt by the plaintiffs to revive an otherwise dead suit. The 4th defendant has averred that this court is competent to hear and determine this suit and that no reasonable justification has been disclosed in the application to warrant the grant of the order sought.

The 8th and 9th defendants have opposed the application through grounds of opposition dated 2nd December 2019. The 8th and 9th defendants have contended that transferring this suit to the ELC at Thika will result in more delay in the disposal of the suit. The 8th and 9th defendants have averred that this court has dealt with other matters related to this suit and as such is best placed to expeditiously resolve the matter. The 8th and 9th defendants have contended that the plaintiffs are to blame for the delay they are complaining about. The 8th and 9th defendants have contended that save for the 4th defendant, the other defendants are deceased. The 8th and 9th defendants have contended further that the society on whose behalf the suit has been brought by the plaintiffs is similarly defunct. The 8th and 9th defendants have contended that in the circumstances, there is no suit pending that can be transferred to the ELC at Thika. The 8th and 9th defendants have averred that the court has power under section 26 of the Environment and Land Court Act, 2011 to hear the suit and that the plaintiffs’ application is an attempt at forum shopping.

The interested parties, St. Mary’s School, Runda and Ndunde Investments Limited have opposed the application through grounds of opposition dated 12th June 2020. The interested parties have contended that the application is scandalous, frivolous and amounts to an abuse of the process of the court. The interested parties have contended further that the plaintiffs are guilty of laches and that the application is aimed at forum shopping. The interested parties have contended further that the application is aimed at delaying the determination of the suit.

The court directed that the application be argued by way of written submissions and gave timelines for the filing of the same. Only the 8th and 9th defendants filed submissions on 14th April 2021. The plaintiffs and the other defendants did not file submissions. I have considered the plaintiffs’ application together with the supporting affidavit. I have also considered the grounds of opposition filed by the defendants and the interested parties in opposition to the application. Finally, I have considered the 8th and 9th written submissions.

This suit was filed in the ELC Division of the High Court at Nairobi on 2nd November 2009 before the establishment of the ELC. After the establishment of the ELC, the suit was taken over by this court. The ELC at Thika was established in 2017 to serve the residents of Kiambu County. Several cases originating from Kiambu County were transferred from this court to the ELC at Thika on application by the parties and by the court on its own motion. A number of cases originating from Kiambu County like the present one remained at the ELC Milimani for various reasons. The reasons why some of the Kiambu cases remained at the ELC Milimani included the ages of the cases, the stages of prosecution the cases had reached and the infrastructural challenges that were being experienced by the ELC at Thika. The plaintiffs have not given an explanation why they did not move the court earlier to have this suit transferred to the ELC at Thika. I can only guess that it may have been due to the age of the matter and the extent to which the ELC at Milimani had dealt with the matter and related cases.

There is no doubt that under sections 3 and 26 of the Environment and Land Court Act, 2011, this court has power to transfer a suit pending before it to another ELC if it can be conveniently and expeditiously determined in that other ELC. What I need to determine is whether sufficient grounds have been put forward by the plaintiffs to warrant the transfer of this suit to the ELC at Thika. In summary, the application for transfer has been brought on the ground that the property in dispute in this suit is situated in Kiambu County within the jurisdiction of the ELC at Thika and that the suit is likely to be heard expeditiously in the ELC at Thika. I am not persuaded that the application for the transfer of this suit to the ELC at Thika is informed by the need to have the suit expeditiously determined. From the record, this suit was fixed for hearing for the first time on 11th October 2017 when the same was listed for hearing on 19th June 2018. Before that hearing date, the plaintiffs brought an interlocutory application which frustrated the hearing of the suit. The plaintiffs have since then brought one interlocutory application after the other. One of the plaintiffs many applications was brought on 13th June 2018 by way of Notice of Motion of the same date seeking leave to amend the plaint. In a ruling that was made by the court on 13th June 2019 in that application, the court struck out the application with costs. The court made a finding that the 1st, 3rd, 5th, 7th, 8th and 9th defendants died on 7th May 2017, 19th October 2011, 4th May 1997, 6th April 2017, 16th May 2008 and 30th August 2013 respectively and as such some of them were sued while deceased while the suit as against others had abated. The court held that a suit against a deceased person is a nullity and cannot be amended while a suit which has abated cannot be amended until it is revived.

Since the suit as against two (2) of the defendants was a nullity they having been sued while deceased and the suit as against five (5) of the defendants had abated, the court ruled that it was not in order to allow the application for amendment with regard to the remaining four (4) defendants until the plaintiffs regularized the status of the other seven (7) defendants. In the said proceedings, the court was informed that two (2) of the plaintiffs were also deceased. The court was however unable to make an order for their substitution since the plaintiffs placed no evidence before the court in proof of their death.

As things stand now, two of the defendants were sued while deceased and as such the suit as against them is a nullity. Secondly, the suit as against five of the defendants has abated and the plaintiffs are yet to make an application for the revival of the suits and substitution of the deceased defendants with their legal representatives. Finally, two of the plaintiffs are deceased and are yet to be substituted with their legal representatives. In the circumstances, the application for the transfer of the suit before me is incompetent as it relates to seven of the defendants. It is also not clear how two of the plaintiffs who are deceased can maintain an application for the transfer of the suit.

There is no doubt from the foregoing that the transfer of this suit to the ELC at Thika would not facilitate its just, expeditious, proportionate and accessible disposal. The plaintiffs have some housekeeping to do in the matter before the court where the matter is currently pending before they can think of having the matter transferred to another court.

The upshot of the foregoing is that the plaintiffs’ application dated 5th September 2019 has no merit. The application is dismissed with costs to be in the cause.

DELIVERED AND DATED AT NAIROBI THIS 20TH DAY OF JANUARY 2022

S. OKONG’O

JUDGE

RULING DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM IN THE PRESENCE OF:

N/A FOR THE 1ST PLAINTIFF

N/A FOR THE 2ND TO 7TH PLAINTIFFS

N/A FOR THE 1ST DEFENDANT

MRS. OMUTIMBA FOR THE 4TH DEFENDANT

N/A FOR 2ND, 8TH AND 9TH DEFENDANTS

N/A FOR 3RD , 5TH , 6TH AND 7TH DEFENDANTS

N/A FOR THE 10TH AND 11TH DEFENDANTS

MRS. WAMBUGU FOR THE INTERESTED PARTIES

MS. CATHERINE NYOKABI-COURT ASSISTANT