[2017] KEHC 1614 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT OF KENYA

AT MILIMANI

ELC CASE NO. 159 OF 2017

MARGARET WAIRIMU MAGUGU......................................................PLAINTIFF

(Suing as the Admistratrix of the estate of the Late Arthur K Magugu)

=VERSUS=

KARURA INVESTMENTS LIMITED......................................1ST DEFENDANT

CHIEF LANDS REGISTRAR.................................................2ND DEFEDNANT

KAMWERE & ASSOCIATES...............................................3RD DEFENDANT

THE ATTORNEY GENERAL..................................................4TH DEFENDANT

NATIONAL LAND COMMISSION........................................5TH DEFENDANT

RULING

BACKGROUND. 1. The Plaintiff is the administratrix of the estate of the late Arthur Kinyanjui Magugu (deceased) who died on 15th September 2012. The deceased was the registered owner of LR No. 12422/9 which was 41. 13 hectares. This property was later subdivided into two portions giving rise to LR No 12422/203 registered in the name of the deceased and LR No. 12422/204 also registered in the name of the deceased. LR No.12422/204 was further subdivided into two portions giving rise to LR No. 12422/318 registered in the name of the deceased and LR No. 12422/319 registered in the name of the first defendant Karura Investment Limited. All the above sub-divisions were undertaken by James Kamwere Muriuki, a licenced land Surveyor operating under the name of Kamwere & Associates sued as the third defendant.

2. The plaintiff filed a suit against the five defendants on 19th January 2017 at Thika Environment and Land Court. She contemporaneously filed an application in which she sought injunctive reliefs against the defendants. Before the application for injunction could be heard, a preliminary objection was raised on the ground that the suit should not have been filed in Thika Environment and Land Court but before Milimani Environment and Land Court under whose jurisdiction the suit property is situated. The objection on the place of filing was canvassed before Lady Justice Gacheru who in a ruling delivered on 2nd March 2017 transferred the file to Milimani Environment and Land Court for hearing and disposal.

3. When this matter was placed before me for directions, I directed parties to file written submissions in respect of the application for injunctive orders dated 19th January 2017 and the one dated 10th April 2017 in which the Plaintiff wanted Mr Machira representing the third defendant barred from representing the third defendant on grounds of conflict of interest. Directions were also given to the parties to put in written submissions in respect of preliminary objections raised touching on both the application for injunction and the main suit.

4. The Plaintiff later withdrew her two applications. Further directions were given that parties file written submissions in respect of the preliminary objections raised touching on the main suit. The Plaintiff filed her submissions on 15th September 2017. The first defendant filed their submissions on 21st September 2017 and supplementary submission on 4th October 2017. The second and fourth defendants filed their submissions on 4th October 2017. The fifth defendant did not file any submissions by choice.

THE PRELIMINARY OBJECTIONS

5. The first defendant’s objections are contained in the notice of preliminary objection dated 2nd February 2017 and filed in court on 3rd February 2017. The second and fourth defendants’ objections are contained in grounds of opposition dated 2nd February 2017 and filed in Court on 3rd February 2017. The third defendant’s objections are contained in the grounds of opposition dated 25th January 2017 and filed in Court on the same day as well as notice of preliminary objection dated 17th February 2017 and filed in Court on the same day.

6. As I said hereinabove, these objections were raised before the withdrawal of the application for injunction. Some were disposed of following the ruling of Lady Justice Gacheru. Other objections were rendered superfluous following the withdrawal of the Plaintiff’s application for injunction. A reading of the objections by the four defendants shows that there are three objections raised touching on the suit. The first one is that the verifying affidavit is defective and therefore bad in law. The second one is that the suit is an abuse of the process of the Court. The third one is that the suit is statute barred. I will deal with the objections raised in that order.

ANALYSIS

Whether the verifying affidavit is defective and therefore bad in law.

7. I have looked at the submissions by the first and third defendants in respect of the verifying affidavit. The two contend that the Plaintiff has omitted to aver in her verifying affidavit that there are no any other proceedings or suit pending between the same parties touching on the subject matter of the suit. This submission is made in reference to Order 4 Rule 1(1) (f) of the Civil Procedure Rules. The Counsel for the two defendants seem to have misunderstood this provision. An averment as to existence of other proceedings is not supposed to be in the verifying affidavit. This is supposed to be contained in the Plaint. The verifying affidavit is only meant to verify the correctness of the averments in the Plaint as to existence or non- existence of other proceedings.

8. I have looked at the Plaint filed by the Plaintiff. Paragraph 30 clearly states that other than the complaint filed before the fifth defendant (National Land Commission), there is no suit pending before any court of law on the same subject matter between the parties herein. This averment is in compliance with Order 4 Rule 1(1) (f) which states as follows:-

“ 1(1) The plaint shall contain the following particulars—

(a) the name of the court in which the suit is brought;

(b) the name, description and place of residence of the plaintiff, and an address for service;

(c) the name, description and place of residence of the defendant, so far as they can be ascertained;

(d) the place where the cause of action arose;

(e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; and

(f) an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the plaint”.

9. I have also looked at the verifying affidavit accompanying the Plaint which has complied with Order 4 Rule (2) which states as follows:-

“The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in Rule 1(1)(f) above”.

Paragraph 3 of the verifying affidavit sworn by the plaintiff clearly states that the plaintiff confirms that all the averments contained in the plaint are correct and true. The Plaintiff had disclosed in the Plaint that other than the proceedings before National Land Commission, there was no any other suit pending involving the defendants over the same subject matter. She then went ahead to confirm the averments in the Plaint. This was in full compliance with the provisions of order 4 of the Civil Procedure Rules. I therefore find no merit in this objection which is hereby overruled.

Whether the plaintiff’s suit is an abuse of the process of the court.

10. The process of the Court must be carried out properly, honestly and in good faith. The Court will not allow its functions as a court of law to be misused. If it is clear that the machinery of the Court is being used as a means of vexation, a court can move to have the proceedings or pleading struck out to prevent the court’s time from being wasted.

11. In the instant case, the plaintiff is contending that the subdivision of LR No. 12422/204 which gave rise to LR No. 12422/318 which was registered in the name of the deceased and LR No. 12422/319 which is now registered in the first defendant’s name was fraudulently done. The subdivision was done and titles issued on 25th November 1993. The first defendant took possession of LR No.12422/319 and has been tending the coffee which was on it. The Plaintiff contends that to conceal the fraud, the first and third defendants had one portion of the subdivision registered in the deceased’s name. She alleges that she discovered the fraud after the demise of the deceased.

12. The Plaintiff is not acting honestly and in good faith. The deceased was alive as at the time the first defendant was registered as owner of LR No.12422/319 in 1993. The deceased passed on, on 15th September 2012, 19 years later. During the lifetime of the deceased, he saw the first defendant who was in possession of LR No.12422/319 and never raised any issue as to the occupation and ownership of the Land in issue. Five years after the demise of the deceased, and 24 years after the registration of LR No. 12422/319 in the first defendant’s name, the plaintiff is coming out to claim that she has discovered that the subdivision process and registration of the suit properties was done fraudulently and that the deceased’s signature was forged.

13. In the withdrawn notice of motion which triggered the objections herein, the plaintiff had wanted to restrain the defendants and their agents from entering, taking possession, trespassing or evicting her from the suit property. She had even wanted police assistance to ensure compliance with the orders. The truth of the matter was that she was not in possession of LR No. 12422/319 and what she had intended to achieve in case the orders were granted was to evict the first defendant.

14. The Plaintiff herself has been selling portions of LR No. 12422/318 which is one of the subdivisions which she now claims to have been fraudulently done. Her excuse for this is that she was acting in the honest mistake that the property she was selling had been subdivided in a genuine manner until after she undertook private investigations which revealed otherwise. It is clear that the plaintiff’s claim is frivolous. It is lacking in substance and lacks bona fides. It is only meant to cause unnecessary anxiety and expense. The plaintiff is clearly trying to misuse the court process on a litigation which is groundless.

Whether the plaintiff’s claim is statute barred.

15. The Plaintiff is contending that the sub-divisions of LR No.12422/204 which resulted in the portion held by the first defendant as well as the portion which was registered in the name of the deceased was done fraudulently. She wants the two titles revoked and the same to revert to LR No. 12422/204 which should then be registered in the name of the deceased. The subdivisions were carried out and registration done on 25th October 1993. What in essence the plaintiff is seeking is claiming back the land held by the first defendant.

16. Section 7 of the Limitation of Actions Act Cap 22 Laws of Kenya provides as follows:-

“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person”.

The Plaintiff contends that she discovered the fraud after the demise of the deceased. This is after she engaged the services of a private investigator. She does not disclose when the alleged private investigator gave her a report which led to the discovery of the fraud. However, be that as it may, the Plaintiff is seeking to come under Section 26 of the Limitation of Actions Act Cap 22 Laws of Kenya which provides as follows:-

“Where, in the case of an action for which a period of limitation is prescribed, either -

(a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or

(b) the right of action is concealed by the fraud of any such person as aforesaid; or

(c) the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it;-

17. The Plaintiff claims to have discovered the fraud after the demise of the deceased. This is when she was trying to collect the properties of the deceased for purposes of obtaining letters of administration. In the instant case, discovery of fraud is not confined to the Plaintiff herself. It also goes to the deceased during his lifetime. The first defendant took possession of LR No. 12422/319 in the 90’s. The property was registered in its name on 25th October 1993. The first defendant has provided utility bills dating as far back as the year 2000. There is affidavit evidence that the first defendant took possession of LR No. 12422/319 in the 90’s . The first defendant did not enter the property on lease basis. The deceased was alive. If the property had not been transferred to the first defendant, the deceased would have questioned the first defendant’s occupation.

18. The first defendant did not seek to enter the property after the demise of the deceased as to arouse the suspicion of the Plaintiff. What the plaintiff is trying to do is to circumvent Section 7 of the Limitation of Actions Act by purporting to claim that she discovered the alleged fraud after the demise of the deceased. Even if the Plaintiff’s claims were true, still the law expected that time for purposes of limitation would have started running when the deceased would have with reasonable diligence discovered the alleged fraud. The occupation of the first defendant would have aroused the suspicion of deceased if indeed the occupation was as a result of fraudulent activities.

19. The issue of Limitation is not a technical issue which can be excused under Article 159 of the Constitution. Limitation is a creature of statute which has a purpose and when it is invoked, a party cannot claim that he is being removed from the seat of justice without being heard. If a case can be disposed of by one party raising a preliminary objection on grounds of limitation, that does not amount to denying the other party a right to be heard. As was aptly captured by the Court of Appeal in Mtana Lewa Vs Kahindi Ngala Mwagangi ( 2015) eKLR, limitation in land claims as with claims of any other nature exist for three main reasons which are;-

i. A plaintiff with a good cause of action ought to pursue it with reasonable diligence (equity does not aid the indolent).

ii. A defendant might have lost evidence over time to disprove a stale claim and

iii. Long dormant claims have more cruelty than justice in them(Halsbury’s Laws of England 4th Edition)

20. The effect of delay in bringing actions was succinctly captured in a recent Court of Appeal decision delivered on 6th October 2017 in Civil Appeal No.142 of 2016 between CMW and JPM where the appellant had lost a claim to a share in matrimonial property on the ground that she had brought her claim after a long time and evidence had been lost in the process. When she moved to the Court of Appeal, the Court of Appeal saw no merit in that appeal which was dismissed.

21. The Limitation of actions Act is a statute which is in use and as per the two cases of Mtana Lewa and CMW (supra) ,it is based on sound principles which are not in contradiction to the Constitution.

CONCLUSION.

22. From the above analysis, it is clear that the Plaintiff’s suit is not only an abuse of the process of Court but also statute barred. I therefore uphold the preliminary objection on grounds of abuse of Court process and limitation and proceed to strike out the plaintiff’s suit with costs to the defendants.

It is so ordered.

Dated, Signed and delivered at Nairobion this 20thday of November 2017.

E.O.OBAGA

JUDGE

In the presence of ;-

Mr Kago,Mr Mwangi and Mr Mburu for Plaintiff

Mr Ng’ang’a for 1st defendant also holding brief for Mr Machira for 3rd defendant.

Mr Kamau for 2nd and 4th defendant

M/s Njuguna for 5th defendants

Court Assistant: Hilda

E.O.OBAGA

JUDGE