[2022] KEELC 3133 (KLR)

Muna & 5 others v Boscardin & 5 others (Environment & Land Case 27 of 2020) [2022] KEELC 3133 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEELC 3133 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case 27 of 2020

FO Nyagaka, J

June 2, 2022

Between

Anne W. Muna

1st Plaintiff

Allan Munga Muna

2nd Plaintiff

Sarah Mwihaki Muna

3rd Plaintiff

Luisa Nyakibishoi Muna

4th Plaintiff

Reuben Ng’ang’a Muna

5th Plaintiff

Kitamu Farm Limited

6th Plaintiff

and

Anne Njoki Munga Boscardin

1st Defendant

Elizabeth Wacheke Waruiru

2nd Defendant

Priscilla Wangechi Muiruri

3rd Defendant

Mukami Gathu

4th Defendant

Njeri Gathu

5th Defendant

Ng’ang’a Gathu

6th Defendant

Ruling

(On interpretation and enforcement of status quo and whether a counterclaim should be maintained against a deceased Defendant following subsequent withdrawal of suit against the party) 1. This suit appears to be on an acceleration tangent in raising many issues at the interlocutory stage more than on its merits towards final determination. This is exemplified by the number of arguments raised by learned Counsel whenever the matter comes up in Court.

2. To begin with, on 20/01/2022 when the matter was mentioned to confirm whether or not a settlement had been reached, learned Counsel for the Defendants pointed out that his client, the 2nd Defendant had passed away on 24th December, 2021. On that fact, arguments were raised as to whether or not the deceased ought to be substituted and if the suit against her, survived her demise. The defence counsel raised the issue that there existed a Counterclaim by the deceased, which, even if the claim against her did not survive, her should be sustained. That would necessitate the substitution of her with an administrator of her estate. The Plaintiffs, being keen on proceeding with the suit, indicated that they would be withdrawing their claim against the deceased Defendant and there would be no need of the delay in the suit by waiting for substitution to take place. At that juncture, the Court invited parties to submit on the issue.

3. On 11/05/2022, when the suit came up for mention before me to confirm whether or not parties had filed written submissions, learned counsel for the 2nd Defendant in the Counterclaim moved the Court orally for two orders, namely, that the Court interprets and gives effect the orders of status quo which were issued on 30/06/2020 and that the suit against the 2nd Defendant be marked as withdrawn, following her death. He did not specifically indicate to the Court the provisions under which he moved the Court, and none of the learned counsel appearing, one of whom supported the Application and the other opposed it, attempted to state which legal provision gave the basis for or otherwise for the first prayer of the Application.

4. This Court will not take much time to consider the issue. Suffice it to say that Article 159(2)(d) of theConstitution of Kenya and Section 3 of theCivil Procedure Act gives this Court power to consider the Application without regard to technicalities and basing its action on the inherent powers it has to make orders that are to make the ends of justice met. In regard to the second prayer, the parties’ arguments gravitated around Order 24 Rule 1, 2, 3, and 4 of the Civil Procedure Rules. Those provisions address circumstances where a party dies the question before the court arises as to whether the suit survives the deceased or not.

5. The basis for the two prayers was that in the course of time, and during the pendency of the suit, there has been a change of circumstances in the matter. A summary of the change of facts necessitating the prayers sought would give an understanding of the issues at hand. In regard to the first prayer, that is to say, interpretation and enforcement of the status quo, the Applicants alleged that immediately prior to and at the time of making the Application, the Defendants were busy ploughing one of the suit parcels of land in readiness for planting and at the same time they had dug a foundation for and began constructing a permanent house on one of the parcels.

6. These allegations from learned counsel for the Plaintiff supported by counsel for the other parties prompted the Court to inquire from counsel for the Defendants whether he was aware of the issue. He stated that he was not. Consequently, the Court adjourned the matter to the next day, that is, 12/05/2022, to allow all learned counsel to obtain further instructions from their respective clients over the allegations and report.

7. The following day, all counsel were in agreement that ploughing had been done on a good portion of one of the parcels of the suit lands. They also concurred that a construction was ongoing on one of the parcels. The Plaintiffs’ both counsel exhibited photos sent through emails to Court, evidencing the ploughing and the freshly dug foundation upon which some building stones had been placed. While all counsel were in one accord concerning the prevailing situation, they differed as lightness from darkness regarding the true import of the actions complained of. Whereas the Plaintiffs’ counsel stated that the status quo ordered by the Court on 30/06/2020 was that the parcel of land was not to be ploughed and cultivated, the Defence counsel submitted that the order of the Court meant that those who were in occupation at the time the order was issued would continue with cultivation of food and crops, among other farming activities.

8. Regarding the ongoing construction, on the one hand, the Plaintiffs’ counsel maintained that there should not have been any building on the suit land as that would change the character of the subject matter. On the other hand, the defence counsel while acknowledging the fact of a construction being carried out on the suit land and that the status quodid not permit that, he denied in toto that his clients were involved. He stated that according to culture, his client, the 1st Defendant, could not share the living house she was in with her niece. He stated that his client did not know who was erecting the house, and that for her she only noticed a foundation and structure being laid. He shield off from informing the Court that the foregoing was the reason the niece was constructing the house. This fact was refuted seriously by the Plaintiffs’ Advocates who submitted that if at all the 1st Defendant was not involved in the construction, then it was being done by her agents and/or instigated by her.

9. In regard to the second prayer, it was submitted that on 24/12/2022, Elizabeth Wacheke Waruiru, the 2nd Defendant, passed away. Before her demise, she was represented by the firm of Musyoka Murambi & Associates who represented the other defendants. She and the other Defendants had, on 21/09/2020, filed a joint Statement of Defence to the Amended Plaint and Counterclaim. The claim against her, among others, was that of trespass, and an injunction was prayed for. In the Defence, she and the other Defendants denied the allegations and counterclaimed against the Plaintiffs. Their claim by way of Counterclaim was basically that the 1st and 2nd Defendants in the counterclaim had committed fraud and the 3rd Defendant in the Counterclaim had acted negligently and in collusion with the 1st and 2nd Defendants. They prayed for the cancellation of the titles to the suit lands from the names of 1st and 2nd Defendants in the counterclaim, a declaration that the titles were obtained by fraud and annulment of the transfers of the titles from the 1st and 2nd Defendants in the counterclaim. They stated in paragraph 8 of the Counterclaim that they had been living on the suit lands since birth. They raised a customary trust as another part of their counterclaim. The replying Affidavit, sworn on 18/09/2020 by Anne Njoki Munga, and filed on 21/09/2020 also contained depositions to that effect. The final prayer was for an injunction against the Defendants by way of Counterclaim.

10. On 03/03/2022, the Plaintiffs filed a Notice of Withdrawal of suit as against the 2nd Defendant. It was dated 2nd March, 2022. It was based on the demise of 2nd Defendant. They prayed that the same be adopted as an order of the court to pave way for hearing of the substantive suit. The Notice stated: “Take notice that the Plaintiffs hereby wish to withdraw and/ or wholly discontinue the suit with no order as to costs, as against the 2nd Defendant herein Elizabeth Wacheke Waruiru by virtue of her death on 24th day of December, 2021. ”

11. The genesis of the two issues before me is that on 30/04/2020, the 1st Plaintiff sued the 1st, 2nd and 4th Defendants together with one Loice Wangoi. By way of an Application dated 29/04/2020 accompanying the Plaint, the Plaintiff sought an injunction against the Defendants over four parcels of land (herein referred to as the suit lands). This followed an allegation that on 15/04/2020, the Defendants had forcefully invaded parcels of land owned by the Plaintiff. The Court determined application on 30/06/2020.

12. In its ruling, the Court stated as follows, “I hereby order that the status quo obtaining as at the date of filing the instant application shall be maintained by the parties herein till the hearing and determination of this suit.” On 17/08/2020, the Plaintiff moved the Court through an Application dated 14/08/2020 seeking to review the order of status quo and, among other orders, issue an injunction against the Defendants restraining them from entering into, constructing upon, entering, farming, trespassing in or in any manner interfering with the parcel of land known as LR. No. 1800/5 comprised in the suit lands. Their argument was that on 11/06/2020, when the initial application came for inter partes hearing, the court suspended the interim orders.

13. In that intervening period up to 30/06/2020 when the court delivered the ruling directing that the status quo as at the time of filing the suit be maintained, the Defendants gained access to one of the suit lands, namely, Waitaluk/Kapkoi 11/Gutongorio/71 and forcibly took possession thereof causing massive destruction of fences and crops. They then alleged that on 30/06/2020, status quo was granted in favour of the Defendants, and that the orders were based on a misleading narrative that the Defendants were in possession of the suit premises.

14. Unsurprisingly, the Application was vehemently opposed. The Respondents responded by way of a Preliminary Objection dated 18/09/2020 and filed on 21/09/2020. When the Application came up for inter partes hearing on 21/09/2020, the court implored parties to attempt negotiations on the application and the suit in its entirety. The negotiations proceeded on for about seven months. When the matter was mentioned on 19/05/2021 parties informed the Court that the negotiations had collapsed. Subsequently, the application dated 14/8/2020 was withdrawn on 26/06/2021.

15. On that date, the Court reiterated that thestatus quobe maintained and the hearing date for the main suit was given. Then there followed a lull and issues arose in between, which then bore the instant application. It is this status quo ordered by the Court on 30/06/2020 that the Plaintiffs alleged was being violated or disobeyed, and asked the Court to interpret and enforce.

16. Regarding the second prayer, the Plaintiffs filed written submissions on 18/03/2022. They summarized the prayers in the Plaint which was amended on 07/08/2020. They stated that the prayers against the deceased were of a personal nature and did not survive her demise. They stated further that a counter-claim could not stand on its own and was not a suit independent of a defence. They cited Order 7 Rule 3 of the Civil Procedure Rules which they argued was in pari materia with the Indian provision of Order 8 Rule 6A(2) of the Indian Civil Procedure Rules. They relied on a comment, on the same, from the learned author, Sir Dinshah Fordunji Mulaa (sic) (the proper name is Dinshah Fardunji Mulla) in “The Code of Civil Procedure, 18thEdition, 2011” at page 1928 where he stated that “A Counterclaim has the effect of cross-suit but only one final judgment is to be pronounced in the suit on the original claim of the Plaintiff and the Counterclaim of the Defendant.”

17. They submitted that under Order 7 Rule 3, whereas the discontinuance of a suit may still leave alive and efficacious a counterclaim that may be determined by way of a judgment, there is no corresponding provision where a judgment on a Plaintiff’s claim leaves a residual counterclaim to be determined later.

18. They relied on the Court of Appeal case of Willam Koross v Hezekiah Kiptoo & 4 others, C.A. No. 223 of 2013 which stated:“…Before delving into res judicata proper, we need to state that there cannot properly be two judgments, and contradictory ones at that, in the same suit. The presence of a counterclaim in a suit, while essentially amounting to a cross-suit, does not give rise to a separate, stand-alone second judgment. A counterclaim never stands on its own and cannot be a pleading independent of a defence.” They also relied on Tabera Clearing Agency Lts v. Southern Credit Banking & 2 others where it cited the Court of Appeal case of William Koross (supra) on the same dictum.

19. They stated then that since the estate of the late Elizabeth Wacheke failed to appoint an administrator, her cause of action or indeed any against her, had been vanquished. That since their claim against the deceased was of a personal in nature, that is, a complaint arising out of trespass, it abated upon her demise. They recalled that one of the deceased’s children had commenced an activity on the suit property contrary to the status quo.

20. The Defendants filed their submissions on 19/03/2022 regarding the same issue. What was not clear, at the time of the oral submissions on 11/05/2022 and 12/05/2022, was whether the submissions and arguments by learned counsel for the Defendants were actually made on behalf of the deceased 2nd Defendant or the other Defendants generally. This is because, from the learned counsel’s own oral submission on the two days, he did not have a client in the name and position of the 2nd Defendant or even any individual intending to take out letters of administration on behalf of the deceased. He stated that he no longer had a client in the capacity of the 2nd Defendant.

21. It then follows that any arguments and submissions on that behalf about the effect of the withdrawal of the suit or the existence of the Counterclaim of the 2nd Defendant were made by other parties other than the person who should have made them. It further puzzles the Court why other persons – the remaining Defendants - would be urging the Claim on behalf of the deceased party without authority or instructions or taking out instructions in that behalf. Be that as it may, this Court is enjoined by law to examine the legal provisions on the issues raised, howsoever and by whomsoever they have been.

22. The above observation notwithstanding, the Defendants submitted by restating the prayers in the Defendants’ Statement of Defence and counterclaim to the Amended Plaint. They rehashed the fact of the Plaintiffs’ withdrawal of the suit against the 2nd Defendant. They concurred with other counsel, and the law, that actions of a personal nature do not survive for the benefit of a deceased person’s estate. Restating the maxim actio personalis moritur cum persona, which essentially means that a personal action dies with the person, they stated that the law provides otherwise in other instances. They cited Section 2(1) of the Law Reform Act, Chapter 26 of the Laws of Kenya. They submitted that a cause of action includes a right violated or threatened to be violated.

23. On their part, the Defendants relied on Order 24 Rules 1, 2, 3, and 4 of the Civil Procedure Rules, 2010. They submitted that a Counterclaim can stand alone, aside from a suit. They relied on the case of Musha Chengo Kenga & another v Lenox Kahindi Fakuro (On behalf of the Fakuro Randu) [2019] eKLR where the Court held,“…it is clear that a suit abates by operation of the law. That means ….... was not substituted within the stipulated time in law.” On abatement, they relied further on the case of Titus Kiragu v. Jackson Mugo Mathai(2015) eKLR and those of Kaboi Mucheru v. Gakua Mucheru Mbugi(2015) eKLR and of the Court of Appeal one of Said Sweilem Gheithan Saanum v. Commissioner of Lands (being sued through the Attorney General) & 5 others (2015) eKLR”

24. On Counterclaims generally, the Defendants relied on the Court of Appeal case of the County Government of Kilifi v. Mombasa Cement Limited [2017] eKLR. In it the Court held that Order 7 Rule 3 of the Civil Procedure Rules that allows a Defendant to file a counterclaim or set-off, is silent on the effect such a Counterclaim must be related to the original subject matter of the suit. They supported the position by relying on the definition of a counterclaim in the Halsbury’s Laws of England, Fourth Edition, Vol. 42 and the comment from the book about which subjects in claims can be brought by way of counterclaim. This Court will not reproduce the two excerpts here.

25. On the proposition that a counterclaim stands independent of a suit, they relied on the Indian Supreme Court case of Sh. Jag Mohan Chawla & another v Dera Radha Swami Satsang & Ors. They then argued that a defendant was permitted by law to raise a counterclaim against a Plaintiff. They then summed up that the Counterclaim brought by the 2nd Defendant on 18/09/2020 survived her upon her death. They prayed for the costs of the application. They then said that the counterclaim against the deceased cannot be severed.

Analysis and Determination 26. I have considered the law, the submissions by all counsel who had occasion to address the Court either orally or in writing on the issues before me. I have also given due consideration of the case law relied on. I arrive at four issues to determine.a)What the order of status quoas given on 30/06/2020 meant.b)Whether a Counterclaim is independent of a suit.c)Whether withdrawal of a suit affects the life of a Counterclaim.d)Whether the Counterclaim by the 2nd Defendant survives her death.e)Who to bear the costs of the instant application.

27. This Court will resolve the last point submitted by the Defendants about the non-severability of the 2nd Defendant from that of the other defendants. It is this Court’s view that causes of action by and against parties are individual in nature. It does not mean that once a suit is filed by or against many parties, it must be continued by or against all of them to “eternity”; there is no doctrine of everlasting joinder of parties to a suit. Depending on a number of circumstances such as death, resolution of the dispute by some of the parties to the suit, change of circumstances that may make it impossible to sustain an action by or against a party or parties, for instance where one of them is declared bankrupt and others remain solvent, the suit by or against that party can be discontinued, within the parameters of the law. It can even be because of a change of heart, perhaps if the light of heaven shines on the disputing parties and they agree to leave the issue at the point it shall have reached.

28. A party cannot be compelled to maintain an action against another that he or she does not wish to. Thus, the argument of inseparability of the Counterclaim is unmerited. At best, it is an attempt by the other Defendants to keep the suit prolonged by way of argument that the Counterclaim must be maintained hence the requirement to go through the process of substitution, without considering the real issue; whether the issue counterclaimed by a deceased party is one that survives that departed soul.

a. What the order of status quo as given on 30/06/2020 meant 29. The facts about the status quo as at 30/03/2020 are clear, as gathered from the documents filed before the Court on that date and thereafter. I only summarize them as follows: As at that date, the Defendants were on the specific suit land which they occupied. There was no cultivating of or planting of fresh crops on the suit lands. There was no construction going on. There were fences and other structures standing on the suit lands, no new ones were erected and the ones should on the suit lands remained. The animals on the suit lands remained there unless the owners remove them on their own volition. Everything ought to have remained that way.

30. Any party or person who had in the meantime, acted to the contrary, was to stop forthwith and that the person/ individual who has brought construction materials to the ground where it is complained about or indeed anywhere else on the suit lands should forthwith, but in any event not later than fifteen (15) days of this ruling, pull down any structures he/she has put up and remove the materials from the site and seal the foundation so as the leave the ground as it was as at the time of filing the suit, failure of which the Plaintiffs have the liberty to do as is directed by the Court, at the cost of that individual.

b) Whether a Counterclaim is independent of a suit 31. On whether or not a counterclaim can be treated as independent from the suit, the starting point is Order 7 Rule 13 of the Civil Procedure Rules. It provides as follows:“Discontinuance, stay or dismissal of suit.13. If, in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.”

32. The import of the provision is that as much as a defendant can and is permitted to bring a counter-claim in a suit, the latter, basically independent of the matter that gave rise to it, being filed by him to seek to resolve all matter in one judgment. It means that where the suit is either stayed or ceases to exist but there is reason to maintain the Counterclaim, the defendant is not barred from proceeding with the counterclaim.

33. Additionally, when the provision is looked at from the prism of the Limitation of Actions Act, it becomes clear that a counter-claim is separate or independent of the suit but once tried together, it gives rise to one judgment. This is because the law acts in synchrony. In a functioning legal system which esteems the rule of law, laws ought to be unitary in terms of purpose for the well-functioning of society. The law cannot and should never provide for one issue in two different ways. That would be a recipe for chaos: it would be a precursor for disobedience of the law.

34. Thus, if the law treats a suit and counterclaim as separate for purposes of delineating the genesis of a cause of action, so it should for purposes of continuance and determination of that those causes of action. It goes without saying then that a counterclaim is a separate entity from a suit. It resides in independence but when tried together fate calls on them to merge as one judgment. Section 35 of the Actprovides:“For the purposes of this Act and any other written law relating to the limitation of actions, any claim by way of set-off or counterclaim is taken to be a separate action and to have been commenced on the same date as the action in which the set-off or counterclaim is pleaded.”

35. It is correct to argue that a counterclaim can be treated as a cross suit, as was held by the Supreme Court of India in Sh. Jag Mohan Chawla & another v Dera Radha Swami Satsang & Ors (Supra). If it is a cross suit, as long as it was instituted within time, its existence should not necessarily depend on that of the suit. It breathes its own life and can bring forth the life of a judgment or decision of a court independent of the suit. Thus, in Beatrice MumbiWamahiuvMobil Oil Kenya Ltd [2011] eKLR it was held that,“…the withdrawal of the main suit did not affect the counter-claim. A counter claim is treated as a separate suit under Section 35 of the Limitation of Actions Act hence its survival cannot be pegged on the pendency of the primary suit.”

36. Much has been said about the separateness of a counterclaim and I find as much in the instant suit. The totality of the above analysis is that the Plaintiffs’ argument on the limb that once the suit against the 2nd Defendant was withdrawn her Counterclaim automatically stood in the realm of non-existence fails. This places this Court on the plane of deciding whether since the counterclaim filed on 18/11/2020 should continue to be in existence, following the filing of the Notice of Discontinuance of the suit against the 2nd Defendant on 03/03/2022.

c) Whether withdrawal of a suit affects the life of a Counterclaim 37. After the death of the 2nd Defendant on 24/12/2021, and the Plaintiffs learnt of it on 20/01/2022, the Plaintiffs instructed their learned counsel to withdraw the suit against her. They filed a Notice of Withdrawal of suit on 03/03/2022. This was intended to pave way for the suit to proceed without being put in abeyance until the provisions of Order 24 of the Civil Procedure Rules regarding substitution are complied with. The question that immediately arises is whether the withdrawal of the suit led to an automatic collapse of the 2nd Defendant’s Counterclaim.

38. Following the above analysis and finding that a Counterclaim may be treated as a claim independent of the suit in which it is filed, the provisions of Order 7 Rule 13 of the Civil Procedure Rules (which was reproduced above in paragraph 31) apply regarding the life of the Counterclaim. In summary it states that in case the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless proceed. In the instant case, the question that arises is whether the claim against the 2nd Defendant having been withdrawn affected the life of the Counterclaim by the deceased. From the provision above cited as compared with the facts of this case, this Court finds that the withdrawal of the suit did not affect the life and existence of the Counterclaim.

d) Whether the Counterclaim by the 2nd Defendant survives her death 39. The next issue is whether the death of the 2nd Defendant affected and nipped the life of the Counterclaim in the bud. The answer to this question lies in analyzing the nature of the Counterclaim. If it was a claim in personum, then it will not survive the demise of the 2nd Defendant and vice versa.

40. The 2nd Defendant’s Counterclaim is found in the pleading titled “joint Statement of Defence and Counterclaim to the Amended Plaint”. It was filed on 21/09/2020. The gravamen of the Counterclaim is to be found in paragraphs 4, 5 and 6 of the pleading. In it, the Defendants, who included the 2nd defendant (now deceased), alleged fraud on the part of the 1st and 2nd Defendants in the counterclaim and that the 3rd Defendant in the Counterclaim had acted negligently and in collusion with the 1st and 2nd Defendants in the counterclaim. They prayed for a declaration that the titles were obtained by fraud, the cancellation of the titles to the suit lands from the names of 1st and 2nd Defendants in the counterclaim and annulment of the transfers of the titles from the 1st to the 2nd defendants in the counterclaim.

41. The question is whether all the averments and prayers of the Defendants, now plaintiffs in the Counterclaim, are in personum, and if so, whether they survive the death of the 2nd Defendant. The simple and straight answer to the question is that they survived the demise of the party. This is derived from a plain reading of Section 2(1) of the Law Reform Act, Chapter 26 of the Laws of Kenya. The Section provides that all causes subsisting at the commencement of the Act against or vested in a person shall survive against or, as the case may be, for the benefit of his estate. The sub-section then lists exceptions to the causes that shall not survive the death of a party. It states that the exceptions are causes of action for “…defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.” The 2nd Defendant never counterclaimed for any of the causes that fall in the exceptions. It therefore follows that the ones in the Counterclaim survived the death of the 2nd Defendant.

42. The upshot of the analysis is that since the cause of action by the 2nd Defendant survived for the benefit of the estate of the deceased, it is still open for the estate to take up the issue by way of substitution of the deceased with representative(s) of the deceased’s estate before it abates after twelve (12) months of her death. It therefore also goes without saying that in terms of Order 24 of the Civil Procedure Rules, the entire suit is automatically put in abeyance to give chance for the estate of the deceased 2nd Defendant to take steps in terms of Order 24 Rule 2 of the Civil Procedure Rules. But it shall be mentioned on 27/09/2022 to confirm the progress of the substitution, if any.

e) Who to bear the costs of the instant Application 43. It is trite law that costs follow the event. In this matter which has been determined, this Court notes that the parties herein are basically family members. This Court is of the view that the parties have a window to settle this matter out of Court. To burden one party or other with costs would exacerbate the strained relations. For this reason, this Court directs that each party bears its costs.Orders accordingly

RULING DATED, SIGNED AND DELIVERED AT KITALE ORALLY ONLINE AND VIA ELECTRONIC MAIL ON THIS 2ND DAY OF JUNE, 2022. DR. IUR FRED NYAGAKAJUDGE, ELC, KITALE.