[2024] KEELC 243 (KLR)

Njuguna v Mbugua & 3 others; Njuguna & 2 others (Interested Parties) (Environment & Land Case E003 of 2021) [2024] KEELC 243 (KLR) (25 January 2024) (Ruling)

Neutral citation: [2024] KEELC 243 (KLR)

Republic of Kenya

In the Environment and Land Court at Muranga

Environment & Land Case E003 of 2021

LN Gacheru, J

January 25, 2024

Between

Peter Kiarie Njuguna

Plaintiff

and

Peter Kiarie Mbugua

1st Defendant

John Kiarie Mbugua

2nd Defendant

Timothy Mbui Njuguna

3rd Defendant

District Land Registrar Thika

4th Defendant

and

Jane Njeri Njuguna

Interested Party

Daniel Njuguna Kinyua

Interested Party

Daniel Njuguna Mbugua

Interested Party

Ruling

1. Vide a Notice of Motion Application dated 8th June 2023, and anchored on Sections 1, 1A, 3A, 63E of the Civil Procedure Act, and Order 12 Rule 7 and Order 51 of the Civil Procedure Rules, the Interested parties/ Applicants have sought for the following Orders: -I.That the Applicants/Interested Parties in this Suit be allowed to file their Bill of Costs together with the Defendants/Respondents.II.That costs hereof be provided for.

2. This instant application is premised on the grounds enumerated at the face of the said application and is supported by the Affidavit sworn by Mr. Emmanuel Owiti (Advocate) of Betty Wamukore & Owiti Co. Advocates dated 9th June 2023.

3. The Interested Parties/Applicants are seeking leave of this Court to file their Bill of Costs in respect of the suit which was withdrawn by the Plaintiff on 5th June 2023.

4. The Applicants have contended that the Plaintiff/Respondent herein knew fully-well that the IP/Applicants were legally parties to the suit, having been served by the Applicants with a Stay of Execution from this Court (differently constituted) dated 22nd May 2023, but nevertheless failed to inform them of the Plaintiff’s Notice to Withdraw Suit.

5. The Applicants have also averred that the Plaintiff/Respondent acted mischievously by failing to disclose to the Applicants about the Plaintiff’s Notice to Withdraw Suit, which was brought to the Applicants’ attention only on 5th June 2023, when the matter came up for hearing.

6. The Applicants further averred that they participated fully in the suit which later was withdrawn by the Plaintiff/Respondent, which entitles them to costs alongside the Defendants/2nd, 3rd and 4th Respondents.

7. The Applicants also averred that while they are not opposed to the withdrawal of suit by the Plaintiff/1st Respondent, they are seeking for costs, having been participants in the suit prior to its withdrawal by the Plaintiff/1st Respondent on 5th June 2023.

8. The Plaintiff/1st Respondent filed a Replying Affidavit sworn by Peter Kiarie Njuguna dated 20th June 2023, opposing the instant application on several grounds.

9. The Plaintiff/1st Respondent averred that at the point of withdrawal of suit on 5th June 2023, the Applicants/Interested Parties had ceased being parties in the suit, with the outcome that the Applicants’ presence in open Court on 5th June 2023, was inconsequential.

10. The Plaintiff/1st Respondent further averred that in seeking to be joined in the suit, the Applicants/Interested Parties were reliant on the Limited Grant of Letters of Administration Ad Litem dated 28th October 2021, which however, were revoked by the Senior Resident Magistrate’s (SRM) Court via a Ruling dated 17th May 2023.

11. Further, the Plaintiff/1st Respondent averred that the Stay of Execution obtained by the Applicants from this Court in respect of the ruling of the Senior Resident Magistrate’s (SRM) Court dated 17th May 2023, did not confer on the Applicants the legal status of parties to the suit.

12. Therefore, the Plaintiff/1st Respondent opposed the instant application and urged the Court to dismiss the said application with costs as it is misconceived and amounts to an abuse of the process of the Court.

13. The Plaintiff/ Respondent also filed Notice of Preliminary objection dated 20th June 2023, and averred that the Court lacks the requisite jurisdiction to entertain the instant application by virtue of the fact that the suit was withdrawn by the Plaintiff/ Respondent on 5th June 2023, and upon the withdrawal of the suit, the same ceased to exist and thus no order can be made on a non -existent suit.

14. The Plaintiff further averred that the instant suit is devoid of merit, is an utter abuse of the Court process and should be dismissed with costs.

15. In support of this Preliminary Objection, the Plaintiff relied on Order 25 of the Civil Procedure Rules on withdrawal of suits, and two decided cases: - Juma vs Khaunya &2 others (2004) eklr, where the Court held; “it is my humble view that a suit which has been withdrawn pursuant to order 25 of the Civil Procedure Rules, cannot be reinstated. A party has the option of instituting a fresh action.”And the 2nd case is that one of Priscilla Nyambura Njue vs Geovhem Middle East ltd: Kenya Burea of Standards (Interested Party) (2021) EKLR, where the Court too held; withdrawal of a suit is itself its end.

16. The Court directed that the said Application be canvassed by way of written submissions. The Interested Parties/Applicants filed their submissions on 29th July 2023, through the Law Firm of Betty Wamukore & Owiti Co Advocates, and urged the Court to allow their application.

17. They submitted that they had a Counter-claim, which was not addressed by the Court. They relied on the case of Muna & 5 others v Boscardin & 5 others case no 27 of 2020 [2022] KEELC 3133(KLR), where the Court held;“…this Court finds that the withdrawal of the suit did not affect the life and existence of the counter-claim.”

18. The Court has carefully considered the instant Notice of Motion Application, the proceedings in general, the relevant provisions of law, the filed submissions and the cited authorities and finds the issues for determination are as follows:1. Whether the Notice of Preliminary objection dated 20th June 2023 is merited?2. Whether the Interested Parties/ Applicants were proper parties to the suit that was withdrawn by the Plaintiff on 5th June 2023 thereby, entitling them to costs?3. What becomes of the Interested Parties/ Applicants’ Counter-claim following the withdrawal of Plaintiff’s suit?4. Are the interested Parties entitled to costs as prayed in the Notice of Motion Application?

19. Before delving into the issues for determination, the Court will point out the issues not in dispute. It is evident that the Plaintiff filed this suit on 24th September 2021, at Thika ELC and sought various orders against the Defendants herein.

20. Among the Prayers sought is a declaration that the subdivision of the suit land Loc 1/Mugumoini/864, and any transfer pursuant thereof is null and void and without any legal effect and that the register should be rectified to restore the name of the deceased Njuguna Kiarie.

21. The suit was resisted by the 1st, 2nd and 3rd defendants who filed their statement of defence on 28th October, 2021. Later the suit was transferred to this Court on 9th May 2022, and was subsequently set down for hearing.

22. However, on 23rd May, 2022, the Interested Parties herein, Jane Njeri Njuguna, Daniel Njuguna Mbugua and Daniel Njuguna Kinyua, filed a Chamber Summons Application even dated and sought to be joined as interested parties.

23. On 22nd June 2022, the Chamber Summons for joinder was allowed and the interested Parties joined in the suit as interested parties. Subsequently, the Interested Parties filed their Defence and Counter-claim against the Plaintiff, where they sought for a declaration that the title deed for LR NO. Loc 1/Mugumoini /1026, issued in favor of the Plaintiff was illegal, unlawful, fraudulent and the same is null and void, plus costs of the suit and interest thereon.

24. The interested parties were joined in the suit by virtue of Letters of Administration Ad colligenda bona issued to them over the estate of Njuguna Kiarie(deceased), and they claimed that they were necessary parties.

25. When the matter came up for hearing on 22nd May 2023, it was submitted by counsel for the Plaintiff that the Interested Parties grant over the estate of Njuguna Kiarie, was revoked and they had no standing in the suit. Indeed, the interested Party through Daniel Njuguna, did admit that the Grant was revoked, and therefore, they had no standing in the matter. The matter proceeded for hearing without the Interested Parties participation.

26. In the course of the hearing, the Plaintiff, Peter Kiarie Njuguna, gave evidence for himself and called no witness. The defense called two witnesses and matter was adjourned to 5th June 2023.

27. However, on 31st May 2023, the Plaintiff filed a Notice of Withdrawal of Suit, under Order 25 Rule 1 of the Civil Procedure Rules, 2010 and section 3A of the Civil Procedure Act. The defence had no objection and the suit was withdrawn wholly with costs to the Defendants, since they had filed defence and proceeded with the hearing of the matter, by having the Plaintiff cross examined and the Defendants had called two witnesses. The Court directed the costs be taxed on the usual manner. By then, the Interested Parties had still been shut out of the proceedings by virtue of lack of standing.

28. It is the above withdrawal and the fact that the Court did not directs that costs be awarded to the Interested parties that prompted the filing of this Application.

29. It is evident that the Interested Parties invited themselves to the suit. They were not sued by the Plaintiff, but filed the Chamber Summons seeking to be joined in the suit as they had Limited letters of Administration over the estate of Njuguna Kiarie(Deceased).

30. The suit herein belonged to the Plaintiff and he had chosen to sue the Defendants. The Interested Parties dragged themselves into the suit, and they cannot accuse the Plaintiff of bringing them to Court and thus the issue of costs. The above being the issues not in in dispute, the Court will proceed to deal with the issues for determination.

(i) Whether the Notice of Preliminary Objection dated 20th June 2023, is merited? 31. The Plaintiff has averred that the Court has no jurisdiction over this application as the suit was withdrawn and there is no existing suit to warrant filing of this kind of an application.

32. Definition of Preliminary Objection was stated as follows in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 ;“....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.”At page701 paragraph B-C Sir Charles Newbold, P. added the following:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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....”

33. Therefore, it is clear that a Preliminary Objection must raise a point of law, but must not involve ascertainment of facts. The issue raised herein is on jurisdiction, which is everything. Without jurisdiction, the Court has no option but to down its tools. See the case of Owners of Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) LTD [1989] 1 KLR, where the Court held that:-“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 at the moment it holds the opinion that it is without Jurisdiction.”

34. A Preliminary Objection is in the nature of what used to be called a demurrer. It raises pure point of law, which is argued on assumption that all the facts pleaded by the other side are correct. It cannot be raised if any facts have to be ascertained or if what is sought to be exercised is judicial discretion.

35. Further, the Supreme Court in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] Eklr, made the following observation as relates to Preliminary Objections: -“The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”.

36. The Plaintiff has contended that the suit was withdrawn and there is no suit in existence and thus this Court has no jurisdiction to entertain the application. It is indeed correct that after the suit was withdrawn, the matter came to an end. However, it is evident that the Court did award costs to the Defendants and directed that the same to be taxed in the usual manner. It is evident that there might still be more proceedings arising from taxation of costs.

37. The suit was withdrawn under Order 25 Rule 1 of the Civil Procedure Rules, which allows the suit to be withdrawn with such terms as to costs as the Court may direct. Further sub rule 3 provides that the Defendant may apply at the hearing for costs of any part of the claim that has been withdrawn. Therefore, the interested parties herein have brought an application for hearing on costs. This is provided for in Orders 25 rule 3 of Civil Procedure Rules and it is apparent that, this Court has jurisdiction to hear this kind of an application on costs.

38. Consequently, this Court finds and holds that the Preliminary Objection, herein though on Jurisdiction, which is a pure point of law is not merited, and the same is dismissed. The application will be decided on merit.

(ii) Whether the Interested Parties/ Applicants were proper parties to the suit that was withdrawn by the Plaintiff on 5th June 2023 thereby, entitling them to costs? 39. It is evident that the Applicants herein had come in as Interested Parties through a Chamber Summons Application, which was allowed by the Court. The Interested Parties thereafter filed a lengthy defence with a Counter- claim. The Applicants did not apply to be joined in as Defendants, but only as interested parties. Having been joined as Interested parties, their involvement in the suit was minimal.

40. The definition of interested party has been given in Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms, Practice and Procedure Rules, 2013) as;“a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the Court, but is not a party to the proceedings or may not be directly involved in litigation”.

41. Further Black’s Law Dictionary, 8th Edition defines Interested party as…” a party who has recognizable stake and therefore a standing in a matter.” This definition has been adopted in many other decisions. The Supreme Court in the case of Francis Karioko Muruatetu & Another vs Republc & 5 others (2016) Eklr, referred to the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eklr, and adopted the same definition of who an Interested person is.

42. There has been lengthy discussions on whether interested parties are actual parties to a suit or not. It is clear that Order 10(4) of the Civil Procedure Rules provides for substitution and/or addition of parties. It provides that the Court may at any stage of the proceedings either upon application or on its own volition order that a party be joined whether as a Plaintiff or Defendant.

43. From the above provision of law, it is clear that the parties to the suit are the Plaintiff and the Defendant. The Interested Parties have stakes in the suit and should only advance their case to protect that stake. Therefore, the principal parties in a suit are the Plaintiff and the Defendant and thus the wording in Order 10(4) of the Civil Procedure Rules, are or whose presence before the Court may be necessary in order to enable the Court to effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.

44. The Court will be guided in this by the decision in the case of Francis Karioko Muruatetu & Another(supra); where the Supreme Court held;“the determination of any matter will always have a direct effect on the primary / principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the Court………an interested party may not frame its own fresh issues, or introduce new issues for determination by the Court….’’

45. From the above holding of the superior Court, it is clear that the role of the interested parties is not to come into the suit and start framing new issues. That is what the interested parties herein did. The Interested Parties are not primary or principal parties in the suit and consequently, they cannot be heard to say that the Plaintiff withdrew the matter whereas they had a Counter-claim. They are not supposed to frame new issues.

46. The other point of concern is that the interested parties had been joined in as Legal Representatives of the estate of Njuguna Kiarie. The interested parties became legal representatives by virtue of limited granted ad colligenda or ad litem, issued to them on 28th October 2021, over the estate of Njuguna Kiarie. This Limited Letters of Administration Ad Litem were given for the purpose of filing and or defending a suit. Letters of Administration Ad Litem are usually granted when the estate of the deceased is required to be represented in Court.

47. In the case of Lydia Ntembi Kairanya & Another v The Hon A.G [2008] Eklr, the Court held as follows;“….. a limited grant of Letters of administration Ad Litem issued to them by the High Court….. it is not disputed that the grant authorized the Plaintiffs to file this suit. But that is as far as the limited grant of Letters of Administration Ad Litem can go. That grant does not contain authority of power to prosecute a filed suit…”

48. From the foregoing, it is evident that limited grant of Letters of Administration Ad litem are usually used when the estate of the deceased person is required to be represented in Court proceedings. It was on the strength of the said Limited Letters of Administration Ad Litem, issued to the interested parties, that they sought to be joined in the suit and they were joined as so.

49. However, it was submitted to Court that the said Letters of Administration Ad Litem, were revoked on 17th May 2023. With the said revocation, the interested parties lacked standing or Locus standi to appear in Court. In the case of Inland Revenue Commissioner vs National Federation of Self Employed and Small Business Ltd(1981)2 WLR 722, it was held that locus standi means a right to appear in Court, and conversely to say that a person has no locus standi to appear or be heard in such and such proceedings.

50. The Interested parties, through Daniel Njuguna, had confirmed that their grant was revoked and therefore, they had no standing in Court. They did not participate in the proceedings of 22nd May 2023. When the Matter came again to Court on 5th June 2023, the said Grant was still revoked, though with a stay of execution. Without Letters of Administration, the Interested Parties had no capacity to appear in Court. Therefore, the primary parties still remained as the Plaintiff and Defendants herein.

(iii) What becomes of the Interested Parties/ Applicants’ Counter-claim following the withdrawal of Plaintiff’s suit? 51. The interested Parties have argued that though they had no objection with the withdrawal of the suit, that their Counter- claim still remained standing and thus were entitled to costs. They relied on two authorities and this Court concurs with the findings thereon that indeed, a Counter claim is an independent claim and is not affected but by the withdrawal of the Plaintiffs suit. However, this Court has noted that the letters of Administration issued to the Interested Parties was revoked and they that have no Locus standi in this suit.

52. Even if they had locus standi, as the Court held earlier, the Interested parties have only identifiable stake in the suit and are not principal parties as provided for in the Civil Procedure Act and Rules. They could only remotely participate in the proceedings, but not frame fresh issues. In doing so through the Counter claim, the Interested Parties seemed to hijack the suit from the primary parties. With the withdrawal of the suit, the Interested Parties claim cannot stand on itself.

53. The Applicants are Interested Parties in an existing suit and their stake in the suit cannot stand alone. See the case of Muna & 5 others v Boscardin & 5 others (Environment & Land Case 27 of 2020) [2022] KEELC 3133 (KLR) (2 June 2022) the court held;Thus, if the law treats a suit and counterclaim as separate for purposes of delineating the genesis of a cause of action, so it should for purposes of continuance and determination of that those causes of action. It goes without saying then that a counterclaim is a separate entity from a suit. It resides in independence, but when tried together fate calls on them to merge as one judgment. Section 35 of the Act provides:“For the purposes of this Act and any other written law relating to the limitation of actions, any claim by way of set-off or counterclaim is taken to be a separate action and to have been commenced on the same date as the action in which the set-off or counterclaim is pleaded.”

54. In answer to the above issue, this Court finds and holds that the Interested Parties Counter claim cannot stand once the main suit is withdrawn by the principal party, as the Interested Parties have stakes in an existing suit and once the suit is no more, their stake diminishes.

(iv) Are the interested Parties entitled to costs as prayed in the Notice of Motion Application? 55. The bone of contention herein is that the Interested Parties were not informed about the withdrawal of the suit by the Plaintiff and that since they had a Counter claim, they would have sought for costs. The Court has found that they had no locus standi and thus reasons why they were not appearing in the proceedings. Further, as provided by Order 25 rule 1 of the Civil Procedure, the Plaintiff could withdrawal his suit any time with the leave of Court.

56. Following the Notice of withdrawal of suit filed by the Plaintiff, the Court did allow the said withdrawal with costs to the defendants since the matter had proceeded. Order 25 Rule 1 & 2 of the Civil Procedure Rules which provides:“1)At any time before the setting down of the suit for hearing the Plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the Defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.2)Discontinuance (Order 25 Rule 2)(1)Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of a written consent signed by all of the parties.(3)Where a suit has been set down for hearing the Court may grant the Plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just.(3)The provisions of this rule and rule 1 shall apply to counterclaims.”

57. It is by virtues of Order 25(3) above that this Court granted costs to the Defendants. Further costs are granted are the discretion of the Court, and even if the Interested Parties has locus standi to appear in Court, the Court would have had discretion to grant them costs or not. Section 27 of the Civil Procedure Act provides: -“(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the Court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the Court or judge shall for good reason otherwise order.”

58. Further it is trite law that costs follow the cause/event, as described by Sir Dinshah Fardunji Mulla in his book The Code of Civil Procedure, 18th Edition, 2011, reprint 2012 at 540, that costs must follow the event unless the Court, for some good reasons, orders otherwise.

59. It is also trite law that the issue of costs is a discretionary one, and costs are awarded to the successful party. In the case of Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others [2013] eKLR, which cited with approval the words of Murray C J in Levben Products vs Alexander Films (SA) (PTY) Ltd 1957 (4) SA 225 (SR) at 227 ,it was stated:“It is clear from authorities that the fundamental principle underling the award of costs is two-fold. In the first place the award of costs is the matter in which the trial Judge is given discretion ...But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at....In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so."

60. The Halsbury’s Laws of England, 4th Edition (Re-issue), [2010], Vol.10. para 16, notes that:“The Court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the Court, a party has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice”

61. Being guided as above, this Court finds and holds that even if the Interested Parties/Applicants were present in Court, the Court had discretion to either award them costs or not. It was not automatic that if they were present in Court, they would have been awarded costs. As the Court pointed earlier, the Interested Parties brought themselves into these proceedings and they cannot seek for costs from the Plaintiff who has chosen to discontinue his claim.

62. For the above reasons, the Court finds that the Applicants/Interested Parties are not entitled to costs. Consequently, this Court further holds that the Notice of Motion Application, dated 8th June 2023, is not merited. The said Application is dismissed entirely with costs to the Plaintiff/ Respondent.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 25TH DAY OF JANUARY,2024L. GACHERUJUDGEDelivered online in the presence of;Ms Nyaga H/B Mr Juma for the Plaintiff/Respondent1stDefendant/RespondentMr Kinuthia for the 2ndDefendant/3rdRespondent3rdDefendant/4thRespondent4thDefendant/Respondent - Absent1stInterested Party/ApplicantMr Owiti for the 2ndInterested Party/Applicant3rdInterested Party/ ApplicantJoel Njojo - Court AssistantL. GacheruJUDGE25/1/2024