[2023] KEELC 16176 (KLR)

Ndunda v Mwanthi & 3 others (Environment & Land Case E018 of 2022) [2023] KEELC 16176 (KLR) (1 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16176 (KLR)

Republic of Kenya

In the Environment and Land Court at Makueni

Environment & Land Case E018 of 2022

TW Murigi, J

March 1, 2023

Between

Patrick Musyoka Ndunda

Plaintiff

and

Wayua Mwanthi

1st Defendant

Musyoka Munywoki

2nd Defendant

Land Registrar Makueni

3rd Defendant

Land Surveyor Makueni

4th Defendant

Ruling

1. By a Notice of Motion application dated July 12, 2022 brought pursuant to the provisions of Sections 1A, 1B and 63 of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, the Applicant seeks the following orders:-1. Spent.2. That this Honourable Court be pleased to issue an order to compel the 1st and 2nd Defendants to compensate the access road which was made from Parcel No Ukia/Kaumoni/752 (Land Adjudication Section) of up to 9 meters.3. That the 1st and 2nd Defendants/Respondents be ordered to pay the costs of this application.

2. The application is premised on the grounds appearing on its face together with the supporting affidavit of the Applicant sworn on even date.

The Applicant’s Case 3. The Applicant averred that he is the legal holder of the suit property having purchased the same in 1995 from the late Nuundu Mutwii Mulingwa. He further averred that at the time when he was purchasing the suit property, the family did not disclose to him that a public access road existed on the suit property.

4. He contended that he became aware of the existence of the public access road after a neighbour informed him as much. He urged the Court to order the Defendants to compensate him for the public access road measuring nine meters created in the suit property.

5. In opposing the application the 1st and 2nd Respondents filed a Notice of Preliminary Objection dated December 5, 2022 on the following grounds:-1. That the suit is incompetent, premature and bad in law as the Plaintiff lacks capacity to bring the suit against the 1st and 2nd Defendants.2. That the Court lacks jurisdiction to hear and determine the suit as it squarely lies within the jurisdiction of a succession Court as provided under the Law of Succession Act Cap 160 Laws of Kenya.

6. The Preliminary objection was canvassed by way of oral submissions.

The Defendants Submissions 7. The 2nd Defendant submitted that the suit is incompetent and bad in law as the Plaintiff has sued the wrong parties. He submitted that his late grandmother sold the suit property to the Applicant 27 years ago. He went on to submit that the 1st and 2nd Defendants had no capacity to be sued as they were not the Legal Administrators of the Estate of Nuundu Mutwii Mulingwa.

8. Peter Wayua Mwanthi on his part stated that he is the son of Wayua Mwanthi the 1st Defendant herein. He submitted that all along, a public road of access exists in the Plaintiff’s land.

The Plaintiff’s Submissions 9. The Plaintiff submitted that he purchased the suit property in 1995 from Nuundu Mutwii Mulingwa. That in the process of clearing the land, a neighbour informed him that a public access road existed on the suit property.

10. He submitted that the land belongs to Nuundu Mutwii Mulingwa. He went on to submit that Peter Mwanthi a son of Nuundu and his wife Wayua sold the suit property to him. He argued that he had sued the 1st and 2nd Defendants Respondents because they are the beneficiaries of the land.

Analysis And Determination 11. The law on Preliminary Objections is well settled. A Preliminary Objection must be on a pure point of law. In the case of Mukisa Biscuits Manufacturing Company Ltd Vs West End Distributors Ltd (1969) EA 696, Law JA stated as follows;“So far as I’m aware, a preliminary objection consists of point of law which have been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

12. Further on Sir Charles Newbold JA stated:-“The first matter relates to the increasing practice of raising points which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a point of law which is argued on the assumption that all the facts pleaded by the other side are correct.it cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.”

13. In Oraro Vs Mbaja [2005] eKLR Ojwang J (as he then was) described it as follows:-“I think the principle is abundantly clear. “A Preliminary Objection” correctly understood is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. An assertion which claims to be a Preliminary Objection and yet it hears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed.”

14. Having considered the pleadings, the Preliminary Objection and the rival submissions, I find that the only issue that arises for determination is whether the present suit is incompetent and bad in law.

15. The 1st and 2nd Defendant’s Preliminary Objection is based on the grounds that the Court has no jurisdiction to hear and determine the instant suit since the Plaintiff has sued the wrong parties. They argued that they have no capacity to be sued since they are not the Legal Administrators of the Estate of Nuundu Mutwii Mulingwa.

16. The Plaintiff instituted this suit against the Defendants vide a plaint dated May 12, 2022 and sought of the following orders:-1. Compensation of where the access road passed.2. Costs of the suit.3. Interest.4. Any other relief.

17. According to the Plaint, the 1st and the 2nd Defendants are sued as the Legal Representatives of the Estate of the late Nuundu Mutwii Mulingwa. In paragraph 5 of the Plaint, the Plaintiff averred that in the year 1995, the late Nuundu Mutwii Mulingwa sold the suit property to him. The 1st and 2nd Defendants submitted that they are not the Legal Administrators of the Estate of Nuundu Mutwii Mulingwa. They further submitted that they did not sell to the Plaintiff the suit property.

18. In a matter involving the estate of a deceased person, it is only a personal representative of the estate of the deceased who can sue and be sued on behalf of such estate.

19. Under section 3(1) of the Law of Succession Act, a personal representative means the executor or administrator of the estate of a deceased person.

20. It is not in dispute that the Plaintiff purchased the suit property from the late Nuundu Mutwii Mulingwa. It is also not in dispute that the Defendants are not the Legal Administrators of the Estate of Nuundu Mutwii Mulingwa.

21. The Plaintiff has not demonstrated that the Defendants are the personal representatives of the Estate of the late Nuundu Mutwii Mulingwa. The Plaintiff is non suited to the extent that he has sued the Defendants instead of the legal representatives of the estate of Nuundu Mutwii Mulingwa. Clearly, the Plaintiff has sued the wrong parties.

22. In the end this Court finds and holds that the suit herein is incompetent to the extent that the Plaintiff has sued the wrong parties. Accordingly, the Defendants preliminary objection is upheld. The Plaintiff’s suit is struck out with costs to the 1st and 2nd Defendants.

……………………………………………HON T MURIGIJUDGERULING SIGNED, DATED AND DELIVERED IN OPEN COURT THIS 1ST DAY OF MARCH, 2023. IN THE PRESENCE OF: -Court Assistant – Mr Kwemboi.Plaintiff2nd DefendantPeter Kyalo Mwanthi