[2022] KEHC 14373 (KLR)

Nguu & 2 others (Suing for and behalf of Eighty Members of Runyenjes Cattle Dip Self Help Group) v M’Mtetu & 2 others (Sued as Chairman, Secretary & Vice-Chairman respectively as well as trustees Runyenjes Cattle Dip Self Help Group); Njiru (Respondent) (Civil Appeal 11 of 2020) [2022] KEHC 14373 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14373 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 11 of 2020

LM Njuguna, J

October 19, 2022

Between

Alexander Munene R Nguu

1st Appellant

Ephantus Njiru Kithongondo

2nd Appellant

Daudi Njiru Kathendu

3rd Appellant

Suing for and behalf of Eighty Members of Runyenjes Cattle Dip Self Help Group

and

Njue M’Mtetu

1st Respondent

Mwaniki Mugane

2nd Respondent

Elias Ndwiga Ngari

3rd Respondent

Sued as Chairman, Secretary & Vice-Chairman respectively as well as trustees Runyenjes Cattle Dip Self Help Group

and

Catherine Muthoni Njiru

Respondent

(Appeal against the judgment delivered on 28. 01. 2019 by J.W. Gichimu (S.P.M) in Runyenjes ELC No. 24 of 2018)

Ruling

1. The appellants herein have appealed to this honourable court against the judgment delivered on January 28, 2019 by J.W. Gichimu (SPM) in Runyenjes ELC No 24 of 2018 on the following grounds as enumerated on the amended memorandum of appeal dated June 22, 2020:i.That the learned trial magistrate erred in law and fact when he failed to consider the following material facts:a.That the plaintiffs were representatives of a group of people who had formed a self-group known as runyenjes dip self help group. The plaintiffs had provided a certificate clearly confirming the existence of the group from the Republic of Kenya ministry of gender, children and social development.b.That the property that was the subject matter of the suit Kaagari/Kigaa/3220 was the property of the entire self help group and any transaction relating to the said property had to be sold with the consent and resolution of the entire membership of the self help group.c.That the alleged sale was done by a small group of people most of whom were not members of the self help group.d.That the buyer, the 4th respondent was well aware that the alleged property was owned by a self help group and the same sale did not involve the entire group as required.e.That considering the above, the sale was not done in good faith.ii.That the learned trial magistrate erred in law and facts when he failed to consider the following material facts that were clearly established by the appellants:a.That the sale was done without any minutes of the shareholders or members of the self help group.b.That some of those who purportedly signed the agreement and transferred the land were not members of the group. That these facts clearly meant that the agreement and the transfer of the land was illegally done.c.That the sale of the cattle dip was done by a small group of people who pocketed the purchase price and shared it among themselves and a small group of their friends.d.The learned magistrate erred in law and fact when he failed to consider the very clear evidence which clearly established that the sale of the cattle dip was not backed with any solid supporting documents especially the minutes of the general meeting and the fact that this group was constituted by over one hundred members.

2. Reasons wherefore, the appellants sought that the judgment by the trial court be set aside and the matter referred to the lower court for hearing, determination and distribution of the suit land.

3. The appellants’ case is hinged on the fact that runyenjes cattle dip self help group, is self-help group which was registered with the ministry of gender, children and social development (as it then was) on the February 3, 1971 with an initial membership of 236 members. The purpose of the group was to establish a cattle dip which would benefit its members and on the issue of disinfecting their cattle, the members contributed money towards purchasing a piece of land known as LR No Kagaari/Kigaa/3220.

4. Both parties agreed that the initial agreement was to have the suit land registered in the names of the county council of Embu (as it then was) to hold in trust for the members but this did not happen as the registered owner of the land, one Njiru Ngorani passed on. A succession cause no 49 of 2007 was then filed at Runyenjes in respect of the deceased and eventually the land was registered in the names of Obadiah Kariri, Elias Ndwiga Ngari and Mwaniki Mugane who are the chairman, secretary and committee member of the group. The three were to hold the land in trust for the benefit of the other group members and a title deed was issued in their names as trustees.

5. That after the government stopped providing cattle dip services, the initial objective of the group was defeated and upon deliberations by the 1st, 2nd and 3rd respondents, they agreed to sell the land and share the proceeds which land was sold at 3. 5 million to the 4th respondent. However, a dispute arose among some members of the group. The appellants who are some of the members of the group allege that the entire process was fraudulent; that the 1st – 3rd respondents had not been validly appointed as trustees of the group and as such, they could not legally sell the land to the 4th respondent. They prayed that the sale of land to the 4th respondent be cancelled or in the alternative, the 1st – 3rd respondents be ordered to account for the proceeds of the sale of the said land or that they be ordered to distribute to and/or share the proceeds of the sale with all the members of the group in an equitable, fair and transparent manner.

6. The court in the process of perusing the record noted that the appeal herein arose from a dispute relating to ownership and use of land and therefore sought to transfer the matter to the Environment and Land Court at Embu; the same precipitated the counsel for the 4th respondent to file a notice of preliminary objection dated July 8, 2022 citing reasons that the court lacked jurisdiction to transfer the matter to the requisite court with jurisdiction. In the same breadth, the 1st, 2nd and 3rd respondents also filed a notice of preliminary objection dated July 18, 2022. The two notices of objection sought for orders that the appeal be struck out on the grounds inter alia that:i.The honourable court herein lacks jurisdiction to adjudicate over the appeal herein;ii.The appeal herein violates the mandatory provisions of the law and thus the same cannot stand.iii.The appeal is incurably defective for being filed before a court that is bereft of the jurisdiction to determine the same.

7. This court will therefore proceed to determine the notices of preliminary objection as raised by the respondents.

8. When the preliminary objections came up for hearing, the court directed that the same be canvased by way of written submissions of which, only the 4th respondent complied with the said directions.

9. The 4th respondent submitted that this being a land matter, the appellant ought to have filed the same in a court possessed of the jurisdiction to determine such matters. The 4th respondent relied on article 162(2) (b) of the constitution; section 13 of the Environment and Land Court Act and inter alia in the cases of Phoenix of E. A. Assurance Company Limited v S.M. Thiga T/Z News Paper Service, Civil Appeal no 244 of 2010 and Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel(2016) eKLR. That this court therefore lacks the jurisdiction to determine the matter herein in that a suit filed devoid of jurisdiction is dead and the same cannot be remedied. In the end, this court was urged to uphold the preliminary objections.

10. The court has carefully read and considered the preliminary objections, the written submissions by the 4th respondent and finds that the issue for determination is whether the preliminary objections are merited.

11. The case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection where their Lordships observed thus:“----a preliminary objection consists of a point of law which has 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 a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.In the same case Sir Charles Newbold, P. stated:“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure 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 has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.

12. An objection to the jurisdiction of the court has been cited as one of the preliminary objections that consists a point of law. Indeed the locus classicus case on the question of jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S” (supra) where the Court held:“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

13. It is important to note that, with the enactment of the Environment and Land Court Act of 2012, the jurisdiction to determine disputes relating to ownership and use of land is bestowed on the Environment and Land Court. It is my considered view as such that issues arising out of the instant appeal are not within the jurisdiction of this Honourable Court. [See the decision of the Supreme Court in the case of Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others, Supreme Court Petition no 19 of 2018- paragraph 40).This is for the reason that where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing as jurisdiction must be acquired before a case can be heard.[See the case ofOwners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd[1989] eKLR].

14. Similarly, in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others[2012] eKLR, where the Supreme Court held as hereunder;A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.[Also see Articles 165 (5) and 162 (2) of the constitution; and Section 13 of the Environment and Land Court Act].

15. From a reading of the above Sections/Articles, it is clear that the Constitution intended to create special courts with special jurisdiction in land matters. That jurisdiction is not therefore donated to the High Court and as such, this court humbly downs its tools.

16. In the end, the preliminary objections are hereby upheld and the appeal herein is struck out with costs to the 1st, 2nd, 3rd and 4th respondents.It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 19TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE…………………………………..for the Appellants……………………………….for the Respondents