[2022] KEHC 14882 (KLR)

Nyabomite Farmers Co-operative Society Ltd v Abdo & another (Civil Case E052 of 2021) [2022] KEHC 14882 (KLR) (Civ) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14882 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E052 of 2021

JN Mulwa, J

November 8, 2022

Between

Nyabomite Farmers Co-operative Society Ltd

Applicant

and

Mahamud Abdulahi Abdo

1st Respondent

Sadi Aden Dirir

2nd Respondent

Ruling

1. Before the court is a Notice of Motion application dated 8/3/2022 brought by the Plaintiff under provisions of Order 40 Rule 2(1) and (2), 3, 4, 10(1)(b) of the Civil Procedure Rules and Second Sections 1A, 1B and 3A of the Civil Procedure Act. The Plaintiff seeks several reliefs as hereunder:1. The application herein be certified as urgent and be heard ex-parte in the first instance.2. The Respondents be barred from continuing to breach the Joint Venture Agreement (the "Said JV") entered into between them on 16th September, 2019 by renting 30% of the housing units the Land known as I.R No. 5074/1 in Eastleigh, Nairobi (the "Said Premises") to strangers.3. The Respondents be compelled to hand over money obtained from their trespassing into the Plaintiffs' 30% of the housing units in the said JV with interest at commercial rates from when they first began the breach.4. If the Respondents disobey Orders 2 and 3 above, their properties be attached and they also be detained in prison for 6 months.5. The Officer in Charge of the California Police at Eastleigh be authorised to enter the said premises and evict the strangers placed in occupation by the Respondents, forcefully, if need be and hand over vacant possession to the Applicants.6. Costs be borne by the Respondents.

2. On grounds that, the Defendants/Respondents have breached terms of a joint venture agreement extended by the parties dated 16/9/2019 by renting 30% of housing units on No. I.R No. 5074/1 Eastleigh, Nairobi herein after called the suit premises to strangers. The Plaintiff therefore seeks that the Respondents be compelled to hand over the money/rent from the alleged strangers (tenants). The application is also supported by an affidavit sworn by one Josiah Oyaro Onchera, who describes himself as the secretary of the Plaintiff co-operative society.

3. The crux of the supporting affidavit is a dispute over houses constructed on the aforementioned suit premises, property of the Plaintiff by the Defendants, who upon completion, were supposed to hand over 30% of the said houses to the Plaintiff as alleged in the joint venture agreement; and thereafter have continued to collect rent from the tenants alleged to be trespassers by the Plaintiff.

4. Upon being served with the application, the Respondents/Defendants filed a Notice of Preliminary Objection dated 11/4/2022 and a Memorandum of Appearance on the 8/4/2022. The Preliminary Objection raises an issue that there is a similar pending suit before the Environment and Land Court No. 130 of 2020 that is yet to be heard and determined, that the subject matter is the same suit premises and the parties are the same parties in the said case. The Respondents thus urge the court to stay further proceedings in this suit to await outcome of the case. Parties filed written submissions on the preliminary objection.I have carefully considered the submissions filed by the Plaintiff/Applicant dated 1/8/2022 and the Respondent dated 13/7/2022.

5. A Preliminary Objection was described in the Mukisa Biscuit Manufacturing Co. Ltd vs Westnd Distributors Ltd [1969] EA 696 as follows:“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 the pleadings, and which if argued as a preliminary point may dispose of the suit.”

6. A rider to the above principle is provided under Section 6 of the Civil Procedure Act to the effect that;“6. No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigant under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

7. The remedy for a matter that is found to be subjudice is an order of stay of the proceedings to await the outcome of the other filed in another court, for good order and reasons, as to avoid conflicting orders or decisions emanating from the different courts, as ably stated in the case Joseph Kimata Wachira & another[2021] eKLR.

8. The subject matter in this case is the use of the suit premises I.R. No. 5064/1 situated at Eastleigh, Nairobi – being construction and use of the units thereon. Both parties agree that the Plaintiff in both suits is the same Nyamobite Cooperative Society Ltd, save that they state the two suits were filed by different factions representing each, headed by one Sawel Malak and the other headed by one Stanley Michire Kibore.

9. The dispute is over the same suit premises, thus litigating under the same title. Both factions are led by different directors of the Plaintiff Cooperative society, and as far as I can discern from the pleadings, is over the use of the Plaintiff’s land parcel. The parties simply interchange their rules; in ELC No. 130 of 2020, the leader is one Stanley Michire Kibor upon a claim as being the chairman of the company while in this matter HCCC No. E052 of 2022, the leader is Samuel Marak, claiming to be the deputy chairman and secretary of the co-operative society.

10. It is clear that the dispute, despite the leaders of the two factors is the same, is over the same suit property, that the Defendants all claim under the same title. I have no doubt that as the facts show, this suit is subjudice as it is under judicial consideration in the Environment and Land Court via ELC case No. 130 of 2020.

11. I do not agree with the Plaintiff’s submissions that the cause of action in this suit is based on breach of contract which seeks an order to compel the Defendants to honour the joint venture and has nothing to do with the suit premises which is under consideration by the ELC. I say so because the ELC will have to go into details to unravel the genesis of the joint venture agreement on the use of the land parcel, the subject matter therein, and eventually the breach of the contract, if any, by the Defendants.

12. The Mukisa Biscuits case (supra) is specific that a point of law ought to be pleaded, or by implication out of the pleadings, and if argued, may dispose of the suit. The plaint in this case is dated 8/3/2022. At paragraph 3, 4 and 5, the cause of action is well pleaded; it is over use of the suit premises, the Plaintiff’s property; it is over construction of a building and at paragraph 5, the Plaintiff avers that the Defendants have committed the tort of trespass, and particulars stated.

13. Section 13 of the Environmental and Land Act, 2011 states the jurisdiction of the said court thus;“13(2) In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the court shall have power to hear and determine disputes.”a.Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources.c)Relating to land administration.e)Any other dispute relating to environment and land.

14. For the foregoing, the dispute between the parties in the two cases is clearly over the land parcel; its use, planning, rent and related issues.

15. This removes the hearing of the case and any interlocutory applications from the High Court as it is the preserve of the Environment and Land Court. I therefore uphold the Defendants Preliminary Objection dated 11/4/2022.

16. Consequently, I not only find that this suit is subjudice, but also one that must be transferred to the court with jurisdiction, the Environment and Land Court, to await the outcome of ELC No. 130 of 2020 that is pending hearing and determination or as the ELC Judge may determine in the matter, including whether or not stay the proceedings in this case pending determination of ELC No. 130 of 2020.

17. As to the Plaintiff’s application dated 8/3/2022, I leave its further progression to the Judge of the ELC. I decline to issue any interim orders for lack of jurisdiction. In this case, I have not found any order of status quo as alleged by the Plaintiff, by its annexture to the Supporting Affidavit “NF-3” as the said interim order was issued by the Hon. Justice Chitebwe J. on 21/3/3033 in High Court Civil Appeal No. E674 of 2021 not in this case.

18. Having made the above observations, I now down my tools. The case is therefore transferred to the Environment and Land Court.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 8TH DAY OF NOVEMBER, 2022J. N. MULWAJUDGE