[2024] KEELC 6738 (KLR)

Mohamed & 2 others v Wananchi Estates Limited & 5 others; Mkowaoganga & 7 others (Intended Applicant); Muhammed (Interested Party) (Environment & Land Case 007 of 2024) [2024] KEELC 6738 (KLR) (Environment and Land) (16 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6738 (KLR)

Republic of Kenya

In the Environment and Land Court at Voi

Environment and Land

Environment & Land Case 007 of 2024

EK Wabwoto, J

October 16, 2024

Between

Fatuma Mohamed

1st Plaintiff

Asha Mohamed

2nd Plaintiff

Wananchi Ranching (Directed Agricultural) Company Ltd

3rd Plaintiff

and

Wananchi Estates Limited

1st Defendant

Harris Horn Alias Harry Horn

2nd Defendant

Settlement Fund Trustees

3rd Defendant

Commissioner of Lands

4th Defendant

Hon. Attorney General

5th Defendant

National Land Commission

6th Defendant

and

Restuta Mkowaoganga

Intended Applicant

Anderson Mombo Mtoto

Intended Applicant

Geoffrey Shuma Msagha

Intended Applicant

Lucy Wandoe Mwamburi

Intended Applicant

Liverson Mwalimu Mkole

Intended Applicant

Hebron Mwande Kizongona

Intended Applicant

Robert Mwachofi Lenjo

Intended Applicant

Johnson Nyambu Mwakio

Intended Applicant

and

Leila Zamzam Muhammed

Interested Party

Ruling

1. This Ruling is in respect to the application dated 17th September 2024 wherein the Applicants are seeking inter alia to set aside the orders of this court closing the Defendants case, joinder of the applicants to the proceedings and injunctive orders against the Plaintiffs restraining them from interfering with their quiet possession and occupation of the parcel known as Taita Taveta/Mwatate Wananchi/1 to Taita Taveta/Mwatate Wananchi/1322.

2. The application was supported by the affidavit sworn by Restuta Mkawoganga on 17th September 2024. The application was premised on several grounds on the face of the application.

3. The application was supported by the 3rd, 4th and 5th Defendants who made oral submissions in support of the same.

4. The Plaintiffs opposed the said application vide the Grounds of Opposition dated 25th September 2024 and Replying Affidavit sworn by Abdi Satar Haji on 25th September 2024. The Interested Party equally filed a Replying Affidavit dated 24th September 2024 sworn in opposition to the said application.

5. During the plenary hearing of the application Learned Counsel Ms. Muhia submitted on behalf of the Applicants, Learned Counsel Mr. Penda made oral submission on behalf of the 3rd to 5th Defendants while Learned Counsel Mr. Kurgat and Mr. Mwazighe submitted on behalf of the Plaintiffs and Interested Party respectively.

6. It was the Applicants case that they are beneficiaries of the Wananchi Settlement Scheme and owners of parcels of land namely:i.Taita Taveta/mwatate Wananchi/1196Ii.Taveta/mwatate Wananchi/1277Iii.Taveta/mwatate Wananchi/900Iv.Taveta/mwatate Wananchi/1320V.Taveta/mwatate Wananchi/1301Vi.Taveta/mwatate Wananchi/1274Vii.Taveta/mwatate Wananchi/1272Viii.Taita Taveta/mwatate Wananchi/247

7. It was averred that Wananchi Settlement Scheme is a conventional settlement scheme registered in May 2010, whereby LR No. 12924 comprising 9,070 Hectares was subdivided by the Government to settle 1,322 beneficiaries among of whom are the Applicants herein. L.R. No. 12924 was previously owned by Wananchi Ranching (Directed Agricultural) Company Limited for a term of 45 years from 1st February 1975 and was later extended on 18th February 1991 for another term of 54 years beginning 1st February 2020.

8. It was contended that on 28th March 1991, a company known as Wananchi estates Limited was incorporated with Wananchi Ranching (Directed Agricultural) Company Limited as one of its directors and shareholders holding 6,000 shares.

9. It was further contended that on 7th November 1991, the Wananchi Ranching (Directed Agricultural) Company Limited transferred LR No. 12924 to Wananchi Estates Limited at a consideration of Kshs. 2,000,000/=. On 9th March 1992, Wananchi Estates Limited charged LR No. 12924 to Standard Chartered Estate Management Limited for Kshs. 25,000,000 which was discharged on 21st February 1997.

10. The Applicants averred that LR No. 12924 was transferred to Settlement Fund Trustees on 21st February 1997 at a consideration of Kshs. 40 Million and subsequently subjected to a settlement scheme. The Applicants were issued with Title Deeds for the subdivided parcels of land after payment of requisite fees.

11. The Applicants averred that the Plaintiffs have threatened to evict the Applicants from their parcels of land, disregarding the fact that the Applicants hold valid title deeds and that they were bona fide occupiers and owners of the parcels of land.

12. The Applicants also averred that they were not aware of the current case before the Court and that their presence is necessary for the Court to adjudicate all questions involved in the suit effectively and completely. The Applicants also averred that they would be gravely affected by the final orders that may be made by the Court.

13. Learned Counsel Mr. Penda arguing in support of the application submitted that matters of Settlement Scheme are emotive in nature and there is need for the Defendants to adduce evidence and hence the court needs to re-open the defence case.

14. The Plaintiffs in opposition to the said application argued that the Applicants do not have a cause of action against the Plaintiffs and that the Applicants remedy lies in filing a fresh suit against the Defendants. It was contended that the Defendants despite service did not file any defence and further that the Applicants still have a cause of action against the 3rd to 5th Defendants.

15. It was further contended that the suit was instituted way back in 2000 and the 3rd to 5th Defendants never filed any defence despite service and hence they cannot purport to say that they were not aware of these proceedings. It was also argued that the application was an attempt to delay the conclusion of the matter and the court was urged to dismiss the application.

16. Learned Counsel Mr. Mwazighe in opposing the application submitted that the Applicants are busy bodies in view of the fact that the matter has been litigated for years. The Applicants slept on their rights and the said application is an afterthought. The application has been made late in the day.

17. The court has considered the application, affidavits and grounds of opposition filed together with oral submissions of the counsel of the parties and is of the view that the following are key issues for determination herein:-i.Whether this court should set aside its orders closing the Defendants case.ii.Whether the Applicants should be joined to these proceedings.iii.Whether the Applicants have made a case for grant of the injunctive orders sought against the Plaintiffs.

18. The court shall now proceed to address the said issues sequentially.

Issue No. (i) Whether this court should set aside its orders closing the Defendants case. 19. In considering whether or not to set aside its orders, the court has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the said orders.

20. In Patriotic Guards Ltd v. James Kipchirchir Sambu [2018]eKLR the court stated as follows:“It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes. Judicious because the discretion to be exercised is judicial power derived from the law and as opposed to a judge’s private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit.”

21. In Shah v. Mbogo [1967] EA 116 the court stated that:“This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”

22. The Applicants had a duty to persuade the court that it deserved the exercise of court’s discretion in reopening of the Defendants case. From the perusal of the record of the court it is evident that the matter came up for hearing several times and the same proceeded and the defence case was closed. The record of the court also confirms that the Defendants were always notified but chose not to participate. The Applicants on the other hand contend ed that they were not aware of the said matter and hence the need to re-open the defence case so that they can be allowed to file their defence and participate in the same.

23. In considering this issue, the court notes that the Applicants in their affidavit have not stated when they became aware of suit considering that the same was filed way back in the year 2000. As such the said application is an afterthought and an abuse of the court process having been made late in the day.

24. Sequence of events in this litigation does not inspire confidence for the court to exercise discretion to re-open the proceedings as urged by the Applicants and the 3rd to 5th Defendants. In the circumstances it is the finding of this court that no compelling reasons have been made to warrant this court to re-open the defence case.

Issue No. (ii) Whether the Applicants should be joined to these proceedings as Defendants 25. With regard to joinder, Order 1 Rule 10, (2) of the Civil Procedure Rules, outlines that:“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 person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

26. The principles for joinder are well outlined in in Meme v Republic [2004]1 124, eKLR which are:a.Joinder of a person because his presence will result in the complete settlement of all questions involved in the proceedings;b.Joinder to provide a protection of a party who would otherwise be adversely affected in law;c.Joinder to prevent a likely course of proliferated litigation.

27. The Applicants seeks to be joined to these proceedings as Defendants on the reasons that they were settled on the parcels known as Taita Taveta/Mwatate Wananchi/1196, 1277, 900, 1320, 1301, 1274, 1272 and 247 by the 3rd Defendant. However, a perusal of the record confirms they have not demonstrated any cause of action against the Plaintiffs and further no statement of defence had been filed by the 3rd Defendant confirming the averments made by the Applicants and as such this court is unable to accede to the Applicants request for joinder to the proceedings.

Issue No. (iii) Whether the Applicants have made out a case for grant of the injunctive orders sought against the Plaintiffs 28. This court having addressed itself on the aforementioned issues, it is evident that the Applicants have not demonstrated any cause of action against the Plaintiffs on the matter and as such no prima facie case has been established by the applicant herein to warrant the grant of the injunctive orders sought. The said relief is equally declined.

29. In conclusion, it is the finding of this court that the application is not merited and the same is dismissed in its entirety. Each party is directed to bear own costs of the said application.

DATED, SIGNED AND DELIVERED VIRTUALLY AT VOI THIS 16TH DAY OF OCTOBER 2024. E. K. WABWOTOJUDGEIn the presence of:-Ms. Muhia for the Applicants.Ms. Chepkirui holding brief for Mr. Kurgat for Plaintiffs.Mr. Mwazighe for the Interested Party.N/A for the other parties.Court Assistant: Mary Ngoira.