[2023] KEELC 21712 (KLR)

Nga’ng’a & 12 others v County Government of Kiambu & 3 others (Environment & Land Case E011 of 2022) [2023] KEELC 21712 (KLR) (30 October 2023) (Ruling)

Neutral citation: [2023] KEELC 21712 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment & Land Case E011 of 2022

BM Eboso, J

October 30, 2023

Between

Peter Karuru Nga’Ng’A

1st Plaintiff

Lucy Njeri Karanja

2nd Plaintiff

Stephen Njora Mwangi

3rd Plaintiff

Mary Njeri Njenga

4th Plaintiff

Isaac Githaiga Wanjuki

5th Plaintiff

Hottensia Wambui Gajirima

6th Plaintiff

Peris Njambi Ngigi

7th Plaintiff

David Kimani Njihia

8th Plaintiff

Margaret Wangui Kariuki

9th Plaintiff

Samuel Kahura Kariuki

10th Plaintiff

Grace Wanja Wangugi

11th Plaintiff

Joseph Gakinya Warui

12th Plaintiff

Samuel Munene Ngatia

13th Plaintiff

and

The County Government Of Kiambu

1st Defendant

The Hon Attorney General

2nd Defendant

The Board of Management Kanyanjara Primary School

3rd Defendant

The Board of Management Kanyanjara Secondary School

4th Defendant

Ruling

1. The thirteen plaintiffs initiated this suit through a plaint dated 28/1/2022. They sought the following reliefs against the defendants: (i) a declaration that land parcel number Muguga/ Jet Scheme/77 (the suit property) belongs to them and that the Land Registrar – Kiambu and the County Government of Kiambu be ordered to execute conveyance documents vesting the suit property in their names; (ii) a permanent injunction barring the 1st, 3rd, and 4th defendants against entering, accessing, possessing, utilizing or constructing on the suit property; (iii) a declaration that the defendants have violated their right to own property, their right to fair administrative action, and their right to equal treatment before the law; (iv) an order quashing the decision of the Works, Town Planning and Markets Committee of the Town Council of Kikuyu made on 23/12/1998 together with all instruments vesting the suit property in the 3rd and 4th defendants; (v) compensation for the value of the land; (vi) general damages, loss of profits and damages for loss of use of the land and for the damage caused on the land; and (vii) costs of the suit.

2. Together with the plaint, the plaintiffs filed a notice of motion dated 28/1/2022, seeking an interlocutory order barring the 3rd and 4th defendants against accessing, entering, constructing on or interfering with the suit property. In addition, the plaintiffs sought an interlocutory order restraining all the defendants against processing title deeds and ownership documents relating to the suit property. The said application, dated 22/1/2022, is one of the two items that fall for determination in this ruling.

3. The second item falling for determination in this ruling is the notice of preliminary objection dated 22/2/2022, brought by the 3rd and 4th defendants. Through the preliminary objection, the duo invite this court to strike out this suit in limine on the grounds that: (i) this court lacks jurisdiction to hear and determine the suit; (ii) the suit is time-barred; (iii) the plaintiffs lack the locus standi to institute and maintain the suit; (iv) the suit is defective, bad in law and filed in contravention of the Limitation of Actions Act and the Civil Procedure Act; (v) the suit discloses no cause of action known in law against the 3rd and 4th defendants; and (vi) the application does not meet the criteria for an interlocutory injunction.

4. Given that the preliminary objection raises the question of the jurisdiction of this court to entertain the suit, I will dispose it before I dispose the application for interlocutory injunctive reliefs. Before I dispose the two items, I will briefly outline the gist of the plaintiffs’ case.

Plaintiff’s Case 5. The applicants contend that between 1980 and 1982, the Kiambu County Council allocated them or their parents a quarter of an acre each out of the suit property. They add that in 1998, the Town Council of Kikuyu allocated the suit property to the 3rd and 4th respondents, to be utilized as a playground, and for the construction of a secondary school. It is their case that the suit property was not available for re-allocation and that the Town Council lacked the legal authority to overturn the decision of the Kiambu County Council. They add that they were neither consulted nor heard before the impugned actions were commenced. The plaintiffs further contend that their rights to property, to fair hearing, and to fair administrative action have been violated.

Preliminary Objection dated 22/2/2022 6. The preliminary objection dated 22/2/2022 was canvassed through written submissions dated 20/5/2022. The following two key issues emerge for determination in the preliminary objection: (i) Whether the plaintiff’s suit is statute-barred under the Limitation of Actions Act; and (ii) Whether the plaintiffs have the locus standi to initiate and maintain this suit. The objectors contend that it is clear from the plaint that the plaintiffs have all along been aware of the allocation of the suit property to the 3rd and 4th defendants since 1998 when the Town Council of Kikuyu made the allocation. They rely on Section 7 of the Limitations of Actions Act and argue that the plaintiffs cannot maintain a suit for recovery of land at this point in time.

7. Further, the objectors argue that the 3rd to the 12th plaintiffs are strangers who cannot maintain a claim over the suit property, adding that they are neither allottees nor administrators of the estates of the alleged allottees of the suit property.

8. I have considered the above arguments. I have also perused the plaint which contains the plaintiffs’ claim. A reading of paragraphs 9 to 23 of the plaint presented by the plaintiffs reveals that the cause of action arose in December 1998 when the Town Council of Kikuyu reserved land parcel number Muguga/Jet Scheme/77 for the development of a secondary school and as a playground for Kanyanjara Primary School. The materials placed before court by the County Government of Kiambu reveal that the decision of the Local Authority was subsequently approved by the Minister for Local Government and the approval was communicated to the Commissioner of Lands on 29/8/2006.

9. Under the law, the plaintiffs had 12 years from December 1998 to challenge the decision and recover the land. They did not do that. They waited until February 2022 when they brought this suit. That is a period of more than 23 years. Clearly, the plaintiffs claim is statute-barred under Sections 7 and 17 of the Limitation of Actions Act. That, regrettably, is my finding on the first issue in the preliminary objection.

10. The second issue in the preliminary objection is the question as to whether the plaintiffs have the locus standi to initiate and maintain this suit. The 1st and 2nd plaintiffs contend that they are allottees of portions of the suit property. The 13th plaintiff contends that he is the administrator of the estate of the late Robinson Ngatia Ndirangu who was an allotee of a portion of the suit property. The other 10 plaintiffs have not placed before the court materials that confer in them the locus standi to mount claims of ownership over the suit property.

11. It is not lost to the court that the key relief which the plaintiffs seek is a declaration that the suit property belongs to them and that it should be registered in their names. The 10 plaintiffs have not placed before the court any material demonstrating that they have the locus standi to maintain a claim for the above relief before this court.

12. For the above reason, the court agrees with the objectors that the 10 plaintiffs lack the locus standi to initiate and maintain this suit. The court does not however agree with the objectors in their contention that the 1st, 2nd and 13th plaintiffs lack the locus standi. However, the court having found that this suit is statute-barred, the finding on the second issue will not salvage the stale claims of the three plaintiffs.

13. In the end, the preliminary objection dated 22/2/2022 is upheld on the ground that the plaintiffs’ suit is statute-barred under Sections 7 and 17 of the Limitation of Actions Act and that the 3rd to the 12th plaintiffs do not have the requisite locus standi to initiate and maintain a claim of ownership over the suit property.

Disposal order 14. The court having found that this suit is incompetent, the suit together with the application for injunctive reliefs are struck out. The plaintiffs will bear costs of the suit.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 30TH DAY OF OCTOBER 2023B M EBOSOJUDGEMr Macharia for the PlaintiffsMr Kiragu for the 3rd and 4th DefendantsMs Muchiri for the County Government of KiambuCourt Assistant: Hinga/Osodo