[2023] KEHC 23243 (KLR)

Njagi v Mbeere County Council; Inspector General of Police & another (Intended Interested Party) (Miscellaneous Application 47 of 2007) [2023] KEHC 23243 (KLR) (4 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23243 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Application 47 of 2007

LM Njuguna, J

October 4, 2023

Between

Fredrick Njuguna Njagi

Plaintiff

and

Mbeere County Council

Respondent

and

Inspector General of Police

Intended Interested Party

County Government of Embu

Intended Interested Party

Ruling

1. The applicants have filed amended notice of motion dated May 9, 2022 being supported by the grounds set out on the face of the application and the supporting affidavit. The orders sought are as follows:a.Spent;b.That this honourable court be pleased to set aside the ruling allowing application dated April 17, 2015 delivered by Hon. F. Muchemi on the 22nd of October 2015 and start the suit de novo;c.That the court be pleased to grant leave for the Inspector general of Police to be enjoined as an interested party in the fresh suit;d.That this honourable court be pleased to grant leave for Embu County Government to be enjoined as an interested party/2nd respondent in the fresh suit;e.Costs of the application be provided for.

2. The matter herein involves a claim over land parcel number Evurore/Evurore/1067 where the defendant applicant got orders that the parcel be registered in his name and the caution placed on the land by the plaintiff/respondent be removed. This court, being differently constituted, gave its ruling granting the prayers sought through the application dated April 17, 2015. The application was unopposed and the ruling was delivered on October 22, 2015. This ruling is the subject of the present application.

3. In the instant application, the applicant, through the Office of the Attorney General, avers that they have delayed in bringing the application owing to disruption of services by the Covid-19 pandemic. That the plaintiff/respondent is now defunct and it is prudent to enjoin the 2nd interested party in the new suit once the court orders that the same be heard de novo. That the land was initially registered in the name of the plaintiff/respondent and reserved for construction of Ishiara Secondary School but allocated part of the land for construction of a police station in 2005.

4. That as of 2006, the land was still registered in the name of the plaintiff/respondent. That Embu County Council attempted to allot the land to the 2nd defendant/1st respondent and the plaintiff/respondent proceeded to place a caution on the land and filed Siakago Civil Suit no. 38 of 2005 seeking injunctive orders against the 2nd defendant/1st respondent. The suit was dismissed for want of prosecution as the plaintiff/respondent had been rendered defunct by the new constitution.

5. The applicant in the present application avers that, the court failed to take judicial notice of the fact that there is a police station existing on the suit land and that allowing the land to be owned by the 2nd defendant/1st respondent would be to jeopardize the public as the police station would be at risk of being removed. That the orders of the court are against public interest and security. That it is paramount that the 2nd intended interested party be enjoined in the matter as the plaintiff/respondent is now defunct. That the 2nd defendant/1st respondent did not disclose to the court that there was a suit filed in Embu ELC Misc. Application. No. 31 of 2014 where the Diocese of Embu Registered Trustees (exparte applicant) and 2nd defendant/1st respondent being an interested party, sought orders to issue to the Commissioner of Lands to allot the suit land to them for construction of the school. In that ELC case, the court, on April 12, 2018, dismissed the suit on the basis that the suit land was public land and therefore, the application couldn’t be sustained. There has been no appeal or review of the said decision from the ELC. That the 2nd defendant/1st respondent who was party to the ELC suit had already been registered as the owner of the suit land as of December 13, 2015.

6. This application is opposed by the 2nd defendant/1st respondent through a replying affidavit sworn on August 4, 2023. He averred that the suit land was passed down to him by his father who had inherited it from his father before that. That his grandfather bought the land for 2 heifers but the Nyonga clan gave the land to Embu County Council, a fact that was later refuted by the said clan through a letter. That he filed an objection to adjudication officer but it was dismissed and the land was registered in the name of Embu County Council. That he filed an appeal to the Minister for Lands and a suit in Meru High Court, which was sent to Embu High Court with Mbeere County Council as a party but it did not participate in the suit.

7. That the Embu County Council agreed to have the land registered in his name even relinquished its interest in the land and a consent was filed, following which the 2nd defendant/1st respondent registered a caution on the property. That despite this, Mbeere County Council tried to remove him from the land vide Siakago civil Suit No. 38 of 2005 that was transferred to Embu High Court Misc. Application. No. 47 of 2007, which suit was dismissed for want of prosecution on October 13, 2014. That the orders sought herein are for a matter that was dismissed. That the Mbeere County Council has never been registered owner of the land, neither has the land ever been reserved for any school or police station. That the application herein is an appeal in disguise and should not be entertained as there is no new evidence to warrant re-opening of the case. That the 2nd defendant/1st respondent has already subdivided the suit land into 42 portions and has sold 16 of the portions to innocent purchasers who have already settled on the land.

8. The court directed that the application be canvassed by way of written submissions. The parties complied.

9. The applicant/1st Intended interested party stated that the transfer of the land from Embu County Council to the 2nd defendant/1st respondent is questionable as the former opted out of the initial case for lack of jurisdiction over the said land and left the case to be prosecuted by the Mbeere County Council. That the court erred in dismissing the case for want of prosecution, without noting that Mbeere County Council had already ceased to exist under the new constitution. That the manner in which the public land was converted to private land was unprocedural. That the Embu County Council withdrew from the matter and advised in its minutes that, if Mbeere County Council had an interest in the matter, they should institute separate proceedings.

10. That given the circumstances, it is questionable how Embu County Council transferred the land to the 2nd defendant/1st respondent after relinquishing its interest in the land. That the transfer instruments were unexecuted and there are no corresponding entries on the green card. They relied on the case of Dina Management LimitedvCounty Government of Mombasa (2023) eKLR. It was their submission that the court has a duty to substitute the defunct Mbeere County Council with Embu County Government before issuing the orders. They relied on Order 1 Rule 10 of the Civil Procedure Rules. It was their argument that all parties relevant to a suit must have a chance to be heard before a decision affecting them is made. Reliance was placed on the cases of Dod Doa Tented Camps & Lodges LimitedvsJubilee Insurance Company of Kenya Limited (2021) eKLR and Trusted Society of Human Rights AlliancevMumo Matemu & 5others(2014) eKLR. That even though the suit land has already been subdivided, one of the parcels hosts a police station and the Inspector General of Police ought to be enjoined in order for him to champion the interests of the public in the case. They also relied on the cases of Habiba W. Ramadhan & 7others vMary Njeri Gitiba (2017) eKLR and John Harun MwauvSimone Haysom & 2others (2021) eKLR.

11. The 2nd defendant/1st respondent submitted that the interested parties cannot be enjoined in proceedings that were dismissed for want of prosecution and their present application does not seek to reinstate the dismissed suit. That the orders for dismissal of the suit have not been appealed against or challenged in any way, and therefore, the interested parties cannot be enjoined in concluded cases but only if the cases are pending. For this argument they relied on the cases of Mayfair Holdingsv. Municipal Council of Kisumu (2020) eKLR andRubina Ahmed & 3others v Guardian Bank Limited (sued in its capacity as successor in title to First National Finance Bank Limited)(2019) eKLR.

12. It was his case that Mbeere County Council, even before it became defunct, did not contest when the suit land was transferred to him. That the transfer process was halted because Mbeere County Council placed a caution on the land. That at best, Mbeere County Council sought an injunction against the 2nd defendant/1st respondent who has all through been in occupation of the land. That Order 45 Rule 1 provides for circumstances under which a judgment can be reviewed and/or set aside and that there is nothing new that this court needs to hear regarding the case. That even if the court was to consider this application, the same arises from a case that was dismissed for want of prosecution.

13. From all the foregoing, the main issue for determination is whether this court has jurisdiction to determine the matters raised herein. Once this is settled, the court will be properly guided regarding determination of the other issues.

14. Jurisdiction is so key that all other matters arising depend on whether or not a court is equipped with the proper jurisdiction. In the celebrated case of http://kenyalaw.org/caselaw/cases/view/45265/ Owners of the Motor Vessel “Lillian S”http://kenyalaw.org/caselaw/cases/view/45265/ vhttp://kenyalaw.org/caselaw/cases/view/45265/ Caltex Oil (Kenya) Ltd (1989) eKLR.“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 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 jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

15. All the issues arising herein are founded on the subject of ownership of and acquisition of land. This court has no jurisdiction to determine these issues as the correct jurisdiction is vested in the Environment and Land Court. I do note that the impugned ruling arose from this court, which being differently constituted, laboured to determine the application dated April 17, 2015. The question of whether this position should be challenged can only be answered by the parties herein should any of them choose to approach the court of appeal.

16. At this point in time, I do find myself lacking jurisdiction to determine any of these issues as to do so would amount to wasting of precious judicial time. However, I note that this suit was filed in the year 2007 before the Environment and Land Court was created and for that reason, I am of the considered view that the court possesses the requisite jurisdiction to transfer the matter to the said court.

17. Consequently, the matter is hereby transferred to the Embu Environment and Land Court for further orders/directions on the hearing of the application dated 9/5/2022.

18. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 4TH DAY OF OCTOBER, 2023. L. NJUGUNAJUDGE...............for the Plaintiff / Respondent...........for the 2nd Defendant/1st Respondent..............Applicant/1st Intended Interested Party..............2nd Respondent/Intended Interested Party