[2017] KEHC 497 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT NYAHURURU

ELC CASE NO 246 OF 2017

NJOROGE MBUGUA MWANIKI….......….….PLAINTIFF/APPLICANT

VERSUS

WILLIAM KIGO……………….....……1st DEFENDANT/RESPONDENT

DAVID MWANGI NDIRANGU............2nd DEFENDANT/RESPONDENT

LAND RIGISTRAR,

NYANDARUA DISTRICT……………3rd DEFENDANT/RESPONDENT

RULING

1. The Plaintiff by a plaint dated 1st March 2016 and filed in court on the 2nd March 2016 instituted the instant suit against the Defendant/Respondent whereby he sought for a permanent order of injunction restraining the Defendants/Respondents from trespassing onto, making use of, staying in, selling, disposing of and/or transferring or in any manner whatsoever interfering with, taking possession or evicting the Plaintiff from suit property No. Nyandarua/Lesirko/1031.

2. The Plaintiff further sought orders compelling the 3rd Defendant/Respondent to cancel all entries made in the Register on the 5th July 2015 and 7th August 2015 as well as to cancel the title Deeds issued to the 1st and 2nd Defendant/Respondents and instead issue a new title in his name.

3. Simultaneously with the plaint, the Plaintiff filed a notice of motion application seeking orders of temporary injunction against the Defendant/Respondents pending the hearing and determination of the suit.

4. The grounds in support of the application and the affidavit sworn in support disclosed the facts that an agreement between the Plaintiff and the 1st Defendant/Respondent was entered into wherein the Plaintiff was to purchase the subject suit from the 1st Defendant/Respondent for Kenya shillings 1,900,000/=. Parties then agreed that the Plaintiff pays the first deposit of Kenya shillings 800,000/=, the balance to be paid upon completion of a succession cause to be commenced within 90 days of the execution of the sale agreement. That thereafter, the 1st Defendant/Respondent to give vacant possession of the suit land within 30 days of the execution of the sale agreement.

5. That upon the payment by the Plaintiff of the first deposit of Kenya shillings 800,000/=, the 1st Defendant/Respondent sold the subject suit to the 2nd Defendant/Respondent wherein the 3rd Defendant/Respondent fraudulently and in breach of his professional and ethical duty as a public servant, issued a title deed to the 2nd Defendant/Respondent.

6. Upon being served with the plaint and the Plaintiff’s Notice of Motion application, the 2nd Defendant/Respondent gave notice of Preliminary Objection dated 23rd August 2016 to both the Plaintiff’s suit and application, seeking that both be struck out and/or dismissed with costs on the grounds that:

i. The Plaintiff lacked the requisite locus standi to bring the application and suit in its entirety.

ii. That the Plaintiff’s suit was inept. Ambiguous and an abuse of the court process.

7. On 25th April 2017, by consent, parties agreed to dispose of the application on the Preliminary Objection first by way of written submissions and thereafter highlight their submissions. The 2nd Defendant/Respondent filed his submissions in support of the Preliminary Objection on 15th June 2017 whereas the Plaintiff filed his submissions on the 18th July 2017.

8. The gist of the 2nd Defendant/Respondent’s submissions in support of the Preliminary Objection is that the suit land was registered in the name of one Hannah Githeri Kigo who is now deceased and for which the Plaintiff/Applicant had neither sought for letters of Administration in respect to her estate nor obtained a grant ad litem to give him the necessary locus standi to bring the instant suit. The 2nd Defendant/Respondent was therefore in contravention of the Law.

9. In so submitting, the 2nd Defendant/Respondent relied on the case of Virginia Edith Wamboi Otieno v Joash Ochieng Ougo and another [1987] eKLR where the court of Appeal held that

‘But an administrator is not entitled to bring as action as administrator before he has taken out letters of administration. If he does the action is incompetent at the date of its inception’.

10. The 2nd Defendant/Respondent also relied on the case of Trouistik Union International vs. Mbeyu & Another [1993] eKLRto buttress their submission to the effect that a suit commenced by a party who has not obtained letters of Administration is incompetent as the party filing it lacks the locus standi to present and prosecute the suit.

11. On the other hand, the Plaintiff in his filed submissions contends that in filing the suit, he was protecting his right to the suit land as provided for under Article 40 of the Constitution. He relied on the High Court Case of Bahola Mkalindi vs. Michael Seth Kseme & 2 others [2012] eKLRto support his submission. In this case the court held that;

‘The Law of Succession Act, Cap. 160 is concerned with the administration of the estate of deceased persons. The estate of a deceased person has been defined by the Act as property which the deceased person was legally competent to freely dispose of during his lifetime, and in respect of which his interest has not been terminated by his death.

Whether the Plaintiff’s father could freely dispose of the suit property is neither here nor there. The Plaintiff is not purporting to administer the estate of his late father. All he is saying, as I understand from his Plaint and the Application, is that as a member of the Duko family, he has legitimate rights in the suit property pursuant to the provisions of Article 63 of the Constitution.’

12. The Plaintiff further submitted that after the Defendant/Respondent had agreed to sell the suit land to the Plaintiff and had received part payment as consideration, he had transferred his beneficial rights and interest to the property to the Plaintiff and the Plaintiff had a right to commence legal action against the Defendant/Respondents for a claim arising from the property. The Plaintiff relied on the decided cases of Solomon Amiani vs Salome Mutenyo Otunga [2016] eKLRand Twalib Hatayan & Another vs. Said Saggar Ahmed & 5 others [2015] eKLR,to lay emphasis on his submissions.

13. The Plaintiff submitted that pursuant to the sale agreement dated the 2nd April 2015, it was incumbent upon the 1st Defendant/Respondent under clauses 1(b) and 3 of the agreement, to ensure that the succession proceedings were commenced so as to give effect to the agreement between the parties.

14. Further submissions were to the effect that after the 2nd Defendant/Respondent illegally got himself registered as the proprietor of the suit land without the requisite letters of Administration, he cannot now benefit from his wrong doing by putting up a defence that there were no letters of administration whereas the deceased’s suit land was transferred to him minus the said grant. The Plaintiff submitted that a man shall not take advantage of his own wrong to gain a favorable interpretation of the Law.

15. The Plaintiff asked the court to dismiss the Preliminary Objection so that the matter proceeds to enable the 1st Defendant/Respondent institute the succession cause as agreed between him and the Plaintiff. The Plaintiff submitted that the 2nd Defendant/Respondent should not be allowed to benefit from his wrong doing.

16. The Matters for determination are:

i. Whether the Preliminary Objection raised is sustainable.

ii. Whether the said Preliminary Objection has merit and should be upheld.

17. It is worth noting that the 1st Defendant/Respondent did not file his Defence to the main suit but filed a replying affidavit to the application dated the 1st March 2016 and did not appear in court to prosecute the same.

18. The 3rd Defendant/Respondent on the other hand, filed a Memorandum of Appearance and Defence but did not file any response to the applications.

19. Having considered and reviewed the pleadings and submissions by the parties, it is clear and not in dispute that the proprietor of the suit land herein was one Hannah Githeri Kige who is now deceased, having died on the 10th January 2013.

20. It is also not in dispute that an agreement was entered into between the Plaintiff and the 1st Defendant/Respondent wherein the Plaintiff was to purchase the subject suit from the 1st Defendant/Respondent for Kenya shillings 1,900,000/=. Parties had then agreed that the Plaintiff pays the first deposit of Kenya shillings 800,000/=, the balance to be paid upon completion of a succession cause to be commenced within 90 days of the execution of the sale agreement. That thereafter, the 1st Defendant/Respondent was to give vacant possession of the suit land within 30 days of the execution of the sale agreement.

21. Further, it is not in dispute that contrary to their agreement, the 1st Defendant/Respondent sold the suit land to the 2nd Defendant/Respondent instead, who then registered it in his name and got title for the same.

22. It is further not in dispute that the 1st Defendant/Respondent, while dealing with the deceased’s piece of land, which is the subject suit herein, had no letters of Administration to enable him deal with the same.

23. On the first issue raised I am obliged to revisit the all-important case decided by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited (1969) EA. 696 A preliminary objection per Law J.A. was stated to be thus:-

“So far as I am aware, 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 the contract giving rise to the suit to refer the dispute to arbitration.”

24. 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.’

25. The summation of the 2nd Defendant/Respondent’s Preliminary Objection is that this matter involves the issue that 1st Defendant/Respondent had no locus standi to bring the application and to file the suit in its entirety as he had not obtained a grant and/or the letters of administration to do so.

26. I have however gone through the Plaintiff’s Plaint and Notice of Motion and the said pleadings do not state that the Plaintiff is representing the deceased person. The Plaintiff has stated in the Plaint and the Notice of Motion that he is the owner of the suit property namely No. Nyandarua/Lesirko/1031 having acquired the same by virtue of a sale agreement between him and the 1st Defendant/Respondent on the 2nd April 2015.

27. The Plaintiff having filed this suit not on behalf of anybody, but for a portion of land which he believes in his, I hold that the suit per se does not offend the provisions of Order 1 Rule 8 and Order 4 Rule 4 of the Civil Procedure Rules, 2010.

28. However looking at the subject suit herein I find that the title of the subject plot had not passed to the 1st Defendant/Respondent and therefore the 1st Defendant/Respondent herein had no proprietary interests to pass. This is further confirmed by the Replying affidavit sworn on the 19th July 2016 by the 1st Defendant/Respondent confirming, at paragraph 6, that indeed he lacked legal capacity to sell the suit land.

29. The Plaintiff’s submission is to the effect that he carried out due diligence before purchasing the suit property from the 1st Defendant/Respondent. The search revealed that as per the last document dated 4th March 2015, the deceased Hannah Githeri Kige was the registered owner of the suit property and it was on that basis that the Plaintiff went ahead and purchased the suit property from the 1st Defendant/Respondent at the consideration of Kshs.1,900,000/= with the agreement that the 1st Defendant/Respondent would take out succession cause within 90 days of the execution of the sale agreement. This was not done and the suit land had remained in the name of the deceased as at the time parties were entering into the agreement on the 2nd April 2015.

30. There is nothing to show that the said change was ever effected. The sale agreement therefore did not pass title to the Plaintiff/Applicant herein and the same is incapable of being enforced.

31. I therefore hold and find that the 1st Defendant/Respondent did not hold a valid title to the suit property to enable him to sell and/or transfer to the Plaintiff.

32. Section 45 of the Law of succession prohibits anyone from intermeddling with property of deceased person and stipulates that:

45 (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

33. I therefore find that the 1st Defendant/Respondent herein intermeddled with property of deceased person and did not hold a valid title to the suit property to sell and transfer the same to the Plaintiff. In the circumstance thereof, I find that the Plaintiff’s suit commenced through a plaint dated 1st March 2016 and filed in court on the 2nd March 2016 is unenforceable and is hereby struck out with costs.

Dated and delivered at Nyahururu this 7th of December 2017.

M.C. OUNDO

ENVIRONMENT & LAND – JUDGE