[2024] KEELC 763 (KLR)

Muteke v Chief Land Registrar Kilifi & 3 others (Environment & Land Case 204 of 2018) [2024] KEELC 763 (KLR) (21 February 2024) (Ruling)

Neutral citation: [2024] KEELC 763 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 204 of 2018

SM Kibunja, J

February 21, 2024

Between

Paul Muteke

Plaintiff

and

The Chief Land Registrar Kilifi

1st Defendant

The National Land Commission

2nd Defendant

The District Land Adjudication Officer Kilifi

3rd Defendant

Great Lakes Port Limited

4th Defendant

Ruling

[NOtice to show Cause Dated 14th April 2022 Under Order 17 Rule 2 Of Civil Procedure Rules] 1. This suit was commenced by the plaintiff, Paul Muteke, through the plaint dated the 16th September 2018 as amended on the 4th April 2019. seeking inter alia for general damages, mesne profits, costs and interest. The defendants are the Chief Land Registrar, Kilifi, National Land Commission and District Land Adjudication officer, Kilifi, the 1st to 3rd defendants respectively, and Great Lakes Ports Limited as the 4th defendant.

2. The 4th defendant entered appearance through Hamilton Harrison & Mathews Advocates on the 26th June 2019 and filed the statement of defence on the 9th July 2019. Then through the notice of change of advocate dated 13th August 2019, Ms. Oluga & Company Advocates came on record for the 4th defendant.

3. The record confirms that the court issued notice to show cause why the suit should not be dismissed dated 14th April 2022 under Order 17 Rule 2 of the Civil Procedure Rules for the 29th June 2022. The plaintiff was duly served with the said notice. The record further confirms that the counsel for the plaintiff and defendants attended court for the notice to show cause on the 29th June 2022. That while the counsel for the defendants sought for the suit to be dismissed, the counsel for the plaintiff informed the court, Matheka J, that this suit was related to ELC No. 79 of 2022 that was before ELC 1. The court directed this matter to be mentioned for further directions before ELC 1 on the 19th July 2022. On that day, the court directed that ELC No. 79 of 2022 and this matter be mentioned together on the 13th October 2022. However, come the 13th October 2022, the court realised ELC No. 79 of 2022 had not been brought up and put off the matter to 22nd November 2022. The next date for the matter to be mentioned according to the record was 3rd February 2023 and then on 22nd March 2023.

4. On 22nd March 2023, the counsel for the plaintiff submitted that they had filed an affidavit in response to the notice to show cause. The court directed the counsel to proceed to file and exchange submissions on the notice to show cause and fixed the matter for mention on the 28th June 2023, and then 2nd November 2023 and 14th December 2023 when a date for ruling was fixed. No submissions have been filed by the parties todate.

5. The following are among the depositions in the affidavit of Paul Muteke, the plaintiff, sworn on the 2nd June 2022 in answer to the notice to show cause why the suit should not be dismissed:a.That the plaintiff received title dated 5th July 2018 to Kilifi/Kadzonzo/Madzimbani/1163, the suit property, in October 2018, after filing of this suit.b.That after receiving title which he thought had made this suit to have been overtaken by events, he received a notice to show cause why execution in Mombasa ELC 79 of 2012 should not issue dated 20th June 2019. He filed an application dated 22nd August 2019 in the said suit seeking setting aside of the judgment therein.c.He also filed an application dated the 21st September 2020 in Malindi HC JR 16 of 2017 seeking to stay and set aside the decree that had quashed the Gazette Notice issued by National Land Commission revoking the irregular issuance of title to the suit land to Ashok Doshi. He added that the application was still pending in court. I have noted from the copies of the judgement and decree attached to the plaintiff’s affidavit as ‘AD1’ and ‘AD3’ that the plaintiff was the 2nd Interested Party therein.d.That he failed to take steps to prosecute this suit because of the multiplicity of suits over the suit property, whose results would impact on the direction this suit will take. That this suit has to wait the determinations of ELC No. 79 of 2022 and Malindi JR Appl. No. 16 of 2017.

6. I have called for, and perused the original record for Mombasa ELC No. 79 of 2012 and noted that the suit was determined through the judgement dated the 22nd June 2015 by Mukunya J, that was delivered on 2nd July 2015. The plaintiff and 4th defendant in the instant suit, ELC NO. 204 of 2018, were the 1st defendant and plaintiff respectively in ELC No. 79 of 2012 respectively . That suit was for declaration and injunction orders over L.R. No. 17439, Mariakani Township, Kilifi County and the court found in favour of the plaintiff therein. That judgement was delivered about three years before the filing of the instant suit, ELC No. 204 of 2018.

7. The only issue arising from the notice to show cause under Order 17 Rule 2 of the Civil Procedure Rules for determination is whether the plaintiff has presented reasonable explanations as to why no steps to prosecute the suit has been taken for over one year. In the case of Patriotic Guards Limited vs James Kipchirchir Sambu [2018] eKLR the Court of Appeal stated thus:“...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.”The power to dismiss a suit is a discretionary power, which is exercised with respect to the circumstances of the case.

8. The plaintiff has veiled himself with two suits which he claims must be determined before this instant one. As already pointed out above, ELC No. 79 of 2012 was determined years before the filing of this suit through the judgement dated the 22nd June 2015 of Mukunya J, that was delivered on 2nd July 2015. The plaintiff has disclosed that he filed an application dated the 21st September 2020 in Malindi HC JR 16 of 2017 seeking to stay and set aside the decree that had quashed the Gazette Notice issued by National Land Commission revoking the irregular issuance of title to the suit land to Ashok Doshi. Though he claimed his application was still pending, the judicial review matter remains finalised unless the orders therein are reviewed, set aside or successfully appealed against. It follows therefore that the plaintiff herein commenced this suit when the other two matters had already been decided.

9. This suit was never consolidated with ELC No. 79 of 2012 which had already been decided by the time of its commencement. It is also apparent the suit properties as described in this suit and ELC No. 79 of 2012 appear different. In ELC No. 79 of 2012, the suit property is LR No. 17439, Mariakani Township, while in this suit the claim is for damages and mesne profits relating to Kilifi/Kadzonzo/Madzimbani/1163.

10. It is the courts finding that the plaintiff has been indolent and is abusing the court process as the reasons given for not taking steps to prosecute this suit are not tenable. In the case of Stephen Somek Takweny & Anor vs David Mbuthia Githare & 2 Others Nairobi (Milimani HCC No. 363 of 2009) the court held as follows:“…The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilized legal process, it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognize as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it.”

11. That in view of the foregoing determinations, the court finds and orders as follows:a.That the plaintiff has failed to present reasonable explanation for the failure to take steps to prosecute this suit for over twelve (12) months by the time the notice to show cause dated 14th April 2022 was issued and served.b.That the plaintiff’s suit is therefore struck out with costs.It is so ordered.

DATED AND VIRTUALLY DELIVERED ON THIS 21ST DAY OF FEBRUARY 2024. S. M. KIBUNJA, J.ELC MOMBASA.In the presence of:Plaintiff : Mr. AdhochDefendants : M/s Machogu For Oluga For 4Th Defendant.Wilson – Court Assistant.S. M. KIBUNJA, J.ELC MOMBASA.