[2023] KEELC 16120 (KLR)

Njeri alias Ruth Wangechi (Being the administrator of Estate of Njeri Kiarie Kanyanga alias Monica Njeri Kiarie) v Karanja & 2 others (Environment & Land Case E226 of 2022) [2023] KEELC 16120 (KLR) (7 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16120 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E226 of 2022

JA Mogeni, J

March 7, 2023

Between

Lucy Wangui Njeri alias Ruth Wangechi

Plaintiff

Being the administrator of Estate of Njeri Kiarie Kanyanga alias Monica Njeri Kiarie

and

Joseph Kariuki Karanja

1st Defendant

Tirika Electrical Engineering Co. Ltd

2nd Defendant

The Land Registrar, Kiambu

3rd Defendant

Ruling

1. The 2nd defendant raised a preliminary objection dated December 15, 2022 on a point of law for the following reasons: -i.That the court lacks jurisdiction to hear and determine this suit as it is time-barred having been brought outside the limitations timelines provided under 4 (2) and section 7 of the Limitations of Actions Act, the cause of action having accrued on September 25, 2007 almost 15 years ago. The Limitation of Actions Act cap 22 section 7 stipulates the timeline for filing this suit to a maximum of 12 years now already lapsed.ii.This honorable court lacks jurisdiction to hear and determine to this suit in view of the provisions stipulated under section 12 of the Civil Procedure Act. The subject matter in this suit is land and immovable property within Kiambu county, the suit thus ought to be instituted within the jurisdiction of a court within its local limits which is the Environment and Land Court in Thikaiii.The suit is frivolous, vexatious, time-barred and an abuse of the court process and should be dismissed with costs to the 2nd defendant.

2. It was the 2nd defendant’s application that the honorable court should strike out the entire suit with costs because the same offended the provisions of section 7 of the Limitation of Actions Act as the plaintiff’s action being one for recovery of land and which was time barred having been brought after 12 years from the date on which the right of action accrued to her.

3. That the suit also violated the provisions section 4(2) of Limitation of Actions Act because the plaintiff’s cause of action having been founded on fraud, which was a tort, should have been brought within 3 years from the date when the cause of action arose. That the suit was vexatious, uncalled for, an abuse of the court process, fatally defective and unsustainable.

4. Further that the suit offended section 12 of the Civil Procedure Act. That the subject matter in the suit is land which immovable property situate in Kiambu county therefore the suit should have been instituted in Kiambu and not at Milimani in Nairobi county.

5. The 2nd defendant’s further submission was to the effect that since the plaintiff’s cause of action was founded on the allegation of fraud, when the deceased transferred the suit property on September 25, 2007 from Njeri Kiarie Kanyanga (deceased) to the 1st defendant who subsequently transferred the same land to the 2nd defendant. The plaintiff alleges fraud against the two duly registered land transfers.

6. For this claim of tort, the 2nd defendant states that it was incumbent on the plaintiff herein to have filed her claim for cause action 3 years from the date when the cause of action arose.

7. That as per the plaintiff’s claim, the registration of the suit property to the 1st defendant was done on September 25, 2007 from Njeri Kiarie Kanyanga. The 1st defendant transferred the suit property to the 2nd defendant for which the plaintiff alleges fraud against the two registered land transfers.

8. The 2nd defendant submits that the plaintiff is late in bringing the action since it is founded on the action of a tort. That the plaintiff thus ought to have brought his action for claim within 3 years but the plaintiff took more than 14 years and 9 months to commence action.

9. That fraud was a tort which is governed by the provisions of section 4 (2) of the Limitations of Actions Act to the effect that:“An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.

10. To buttress their submission, counsel for the 1st and 2nd defendants relied on the decided case of Edward Maonge Langusuranga v James Lanaiyara &anotherELC CaseNo 49 of 2018, Dickson Ngige v Consolidated Bank& another ELC Suit No 583 of 2016 eKLR among others.

11. The 1st and 2nd defendants have further submitted that they neither live nor work in Nairobi and the suit property is situate in Kiambu county and therefore the right court to hear the matter would be Thika Environment and Land Court.

12. The application was unopposed. The plaintiff despite being served did not file any response to the application

Analysis and Determination 13. The issues that I see that commend themselves for the determination in the application are:i.Whether the plaintiff’s suit is time barredii.Whether this court has the jurisdiction to entertain this suit.

14. The first issue on whether the plaintiff’s suit is time barred, the court notes that the grounds upon which the preliminary objection is premised on is that the court lacks jurisdiction to hear the suit because it is barred by the provisions of section 4 (2) and section 7 of the Limitations of Actions Act. Further that is it barred by section 12 of the Civil Procedure Act since the subject is immovable property situate in Kiambu county.

15. Section 4 (2) reads:“An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:Provided that an action for libel or slander may not be brought after the end of twelve months from such date”

16. In the instant suit, it means that time therefore started running on September 25, 2007 and the period of three years ended on September 26, 2010. When the 2nd defendant became the registered owner of the suit property on June 15, 2011 then three years later which is on June 16, 2014 it ended. The filing of the matter in 2022 was therefore time barred in the circumstance.

17. Section 7 of the Limitation of Actions Act reads:‘An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.’

18. According to paragraphs 7 of the plaint, the cause of action arose when the plaintiff wanted to file the succession cause that is when she discovered that the 1st defendant had taken control of the suit property. The 1st defendant submitted that the transfer of the suit property was done on September 25, 2007 by the deceased Njeri Kiarie Kanyanga to the 1st defendant who subsequently transferred it to the 2nd defendant on June 15, 2011.

19. In the case of Bosire Ongero v Royal Media Services [2015] eKLR the court held that the issue of limitation goes to the jurisdiction of the court to entertain claims and therefore if a matter is statute barred the court has no jurisdiction to entertain the same.

20. In the case of Justus Tureti Obara v Peter Koipeitai [2014] eKLR wherein J. Okong’o held that;I am in agreement with the plaintiff’s submission that the plaintiff’s claim is for the recovery of the suit property from the defendant and as such the limitation period for such a claim is 12 years as provided for in section 7 of the Limitation of Actions Act, cap 22, Laws of Kenya.I would wish to point out further that the plaintiff’s case although for recovery of land is based on fraud. The proviso to section 26 (a) of the Limitation of Actions Act, cap 22, Laws of Kenya provides that where an action is based on the fraud of the defendant or his agent, the period of limitation does not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. As to when the plaintiff herein discovered the fraud alleged against the defendant is a matter to be ascertained at the trial”.

21. The plaintiff stated at paragraph 7 of the plaint that the 1st and 2nd defendants obtained the suit property by fraud. The pleadings are not drafted in definitive terms and therefore the time when the plaintiff discovered fraud is not provided. The plaintiff did not file any response to the application and therefore the 1st and 2nd defendant’s averments are uncontroverted.

22. On whether the court has jurisdiction over the matter. Section 12 of the Civil Procedure Act provides that:“Subject to the pecuniary or other limitations prescribed by any law, suitsa.for the recovery of immovable property with or without rent or profitsb.For the partition of immovable propertyc.Fore the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable propertyd.Or the determination of any other right or interest in immovable property.”Where the property is situate in Kenya, shall be instituted in the court within the local limits of whose jurisdiction the property is situate.Provided that a suit to obtain relief respecting, or compensation for wrong to immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business, or personally works for gain.

23. Further, with regard to geographical jurisdiction, section 15 of the Civil Procedure Act provides as follows:“Subject to the limitations aforesaid, every suit shall be instituted within the local limits of whose jurisdictiona.The defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit actually and voluntarily resides or carries on business, or personally works for gain.”

24. The 1st and 2nd defendant submitted that the suit offended section 12 of the Civil Procedure Act. That the subject matter in the suit is land which is immovable property situate in Kiambu county therefore the suit should have been instituted in Kiambu and not at Milimani in Nairobi county. This means that indeed the court has no jurisdiction to hear this matter filed in the wrong court.

25. What then is the fate of a matter that is filed in a court that has no jurisdiction? Can it be transferred to a court that has jurisdiction?

26. In KagenyivMusiramo &another1968 EA 43 it was held that whereas section 18 of the Ugandan Civil Procedure Act (which is similar to section 18 of the Kenyan Civil Procedure Act), gives the High Court a general power to transfer all suits at any stage of the proceedings, even suo moto by the court, an order for transfer of a suit from one court to another cannot be made unless the suit has in the first instance been brought to a court which has jurisdiction to try it.

27. The holding in the Kagenyi case has been followed in many decisions in Kenya including the case of Rob De Jong &another vCharles Mureithi Wachira (2012) eKLR where Ibrahim J (as he then was) held as follows:“The second issue is whether this court can direct the transfer of the suit before the Magistrate’s Court to the industrial court. I concur with the position taken by learned counsel for the appellant that to invoke this power the case should be before a court with jurisdiction. If the matter was filed in a court without jurisdiction, then the suit is a nullity and there is nothing capable of being transferred. This position was also followed by Makau J inJoseph Muiruri v Godfrey Gikundi Anjuri2012 eKLR”.

28. However, in a departure from this position, Kasango J in Wycliffe Mwangaza Kihugwa v Grainbulk Handlers Limited (2014) eKLR held that the High Court can now transfer a suit to another competent court even where the suit had been, in the first instance, brought to a court which had no jurisdiction to try it. Such transfer must however, be in compliance with section 18 of the Civil Procedure Act and the Constitution of Kenya. I beg to differ respectively with this position because I believe jurisdiction is everything and without it any court should down its tools as was decided in the by the celebrated case of The Owners of Motor Vessel Lillian “S”vCaltex Oil Kenya Limited1989 KLR 1653 the Court of Appeal held as follows:“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 has no jurisdiction”

29. Infact, in the recent case of RvKarisa Chengo and2 others (2017) eKLR the Supreme Court of Kenya revisited the issue of jurisdiction and observed that in almost all legal systems of the world, jurisdiction has emerged as a critical concept in litigation. Citing John Beecroft Saunders in his treatise Words and PhrasesLegally DefinedVol 3 at P 113 jurisdiction is defined as follows:“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted and may be extended or limited by like means….Where a court takes upon itself to exercise a jurisdiction which it does not possess, its decisions amount to nothing”

30. The Supreme Court further cited the Owners of Motor Vessel Lilian “S” (supra) which held as follows:“Lack of jurisdiction renders a court’s decision void as opposed to merely voidable. When an act is void, it is a nullity ab initio, it cannot found any legal proceedings”

31. The Supreme Court further cited Lord Denning inBenjamin Leonard in Macfoy United Africa Company Limited (UK) 1962 AC 152 where he succinctly stated as follows:“A court has jurisdiction in matters that are voidable, not to proceedings that are a nullity, for those are automatically void and a person affected by them can apply to have them set aside ex debito justitiae in the inherent jurisdiction of the court”If an act is void then it is in law a nullity, it is not only bad, but it is incurably bad and every proceeding which is founded on it is also bad and incurable bad. You cannot put something on nothing and expect it to stay there, it will collapse”.

32. In view on my finding above, I find and hold that this court has no jurisdiction to entertain this suit which is time barred. It is my opinion from the foregoing that it is clear that jurisdiction is not just a procedural matter which can be glossed over. Its absence renders the suit void. Consequently, the suit herein cannot be transferred to another court as it is void. The suit is therefore struck out with costs to the 2nd defendant.

33It is so ordered.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF MARCH 2023. MOGENIJUDGEIn the virtual Presence of;-Mr Mucheru for the 1st, 2nd, and 3rd DefendantsMs Wanjiru holding brief for Mr. Makau for PlaintiffMs. Caroline Sagina: Court Assistant