[2021] KEELC 2237 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC CIVIL SUIT NO. E166 OF 2020

PAUL NJUGUNA MBURU.......................................................PLAINTIFF

VERSUS

MELODY WANGUI KARIUKI.......................................1ST DEFENDANT

FRANCIS NDEGWA MWANGI.....................................2ND DEFENDANT

RULING

The 1st and 2nd Defendants filed the application dated 19/10/2020 seeking to have the court strike out the plaint for being an abuse of the court process or in the alternative, for stay of further proceedings in this suit pending hearing and determination of Nairobi Chief Magistrates Court Civil Suit Number 7980 of 2019 – Paul Njuguna Mburu v Melody Wangui Kariuki and Francis Ndegwa Mwangi.

The application was made on the grounds that filing of several applications or suits seeking the same orders amounts to an abuse of the court process. Further, that the Plaintiff filed this suit after being denied an injunction by the Chief Magistrate’s Court on 17/7/2020 in the suit where the Defendants had a counterclaim and that this suit was therefore filed in abuse of the process of the court. The Defendants contended that the Plaintiff filed a suit in the Magistrate’s Court at Milimani Commercial Courts seeking to be issued titles over the land known as reference numbers (L.R. Nos.) 14717 and 14718 (“the Suit Property”). The Defendant contended that the Plaintiff sought to withdraw that suit by filing a notice of withdrawal which was yet to be endorsed by the Magistrate’s Court and rushed to this court to file a suit which was identical to the one he purported to withdraw. The Defendants averred that they had filed an application to have the notice of withdrawal of the suit set aside to allow that suit to proceed. That application was scheduled to come up on 19/10/2020. The Defendants averred that the Plaintiff was blowing hot and cold by contending that the Suit Property had appreciated in value in a depressed economy. The Defendants contended that they would suffer great prejudice if these suits were allowed to proceed as most of the issues and facts had already been adjudicated upon by the Magistrate’s Court.

The 2nd Defendant swore the affidavit in support of the application in which he averred that the Plaintiff’s objective was to have a suit in which he had lost an application for injunction replaced by this suit and deprive the 1st and 2nd Defendants of the fruits of the ruling delivered on 17/7/2020. He referred to the pleadings and proceedings before the Magistrate’s Court. He contended that this court lacked jurisdiction to try this suit. He added that this court had powers to stop the Plaintiff from benefiting fraudulently and viciously from a problem which he created by striking out this suit so that the case before the Chief Magistrate could proceed. The 2nd Defendant pointed out that the notice of withdrawal of the suit which the Plaintiff filed in Milimani CMCC No. 7980 of 2019 was yet to be endorsed and adopted by that court. He argued that the institution of this suit was an abuse of the court process and that the suit was vexatious because the Plaintiff seeks to file a subsequent suit touching on the same subject matter. He contended that the Plaintiff had omitted vital documents from his bundle of documents which shows that the issues he seeks to have adjudicated on were the same issues to be decided in the suit before the Magistrate’s Court.

The Plaintiff swore the affidavit in opposition to that application. He averred that his former advocates, Ndeda and Company Advocates, instituted Nairobi CMCC No. 7980 of 2019 in which the court made an order for parties to maintain the status quo on the Suit Property. That upon delivery of the Magistrate’s ruling of 17/7/2020, he was advised by Mr. Victor Rapando Advocate of Rapando and Odunga Advocates that it was necessary to undertake a valuation of the Suit Property in light of the Defendants’ position that the Suit Property was valued at Kshs. 30,000,000/= which was in excess of the jurisdiction of the Magistrate’s Court. The valuation report indicated that the value of the two parcels of land was in excess of Kshs. 80,000,000/=. He deponed that based on that valuation, he instructed a new firm of advocates to file a notice of withdrawal in the magistrate’s court which was served on the Defendants on 28/9/2020. He averred that the notice to withdraw the suit was filed on 28/9/2020 alongside the notice of change of advocates.

The Plaintiff blamed the mistake of filing the proceedings before the Magistrate’s Court on his former advocates. He mentioned that the Defendants had indicated in their counterclaim dated 6/11/2019 that the value of the Suit Property was over Kshs. 30,000,000/=. He believed that there was no basis for continuing the proceedings before the Magistrate’s Court in the absence of the requisite pecuniary jurisdiction. He added that he filed the suit seven days after he withdrew the suit before the Magistrate’s Court.

The Plaintiff averred that he believed that the suit before the Magistrate’s Court was a nullity for want of jurisdiction. He added that the suit had not been heard or determined and that the only remedy was for him to withdraw that suit as he did because Section 18 of the Civil Procedure Act envisaged that the power to transfer a suit could only be exercised where the suit had been filed before a court of competent jurisdiction.

The Plaintiff maintained that the Defendants’ counterclaim before the Magistrate’s Court was incompetent because that court does not have jurisdiction to hear and determine the dispute relating to the Suit Property. He added that there was no other suit pending before a court of competent jurisdiction with respect to the subject matter of these proceedings. He urged that it would be unjust and draconian for this court to strike out his suit.

Parties filed submissions which the court considered. The 1st and 2nd Defendants submitted that they had filed ELC Misc. Application Number E075 of 2020 in which they were seeking a transfer of CMCC No. 7980 of 2019 to this court for trial as ordered by the Chief Magistrate on 17/7/2020. The Defendants contended that the Plaintiff was obliged to apply to this court under Section 18 of the Civil Procedure Act for the withdrawal of the suit before the Magistrate’s Court and its transfer to this court as ordered by the Chief Magistrate on 17/7/2020. They submitted that the valuation which the Plaintiff undertook was designed to enable him defeat the two court orders for the maintenance of status quo and for the setting down for hearing of the suit. The Defendants submitted that this suit was an abuse of the process of the court because the Plaintiff sought the same reliefs in the suit which he purported to withdraw. Further, that it was fraudulent of the Plaintiff in that by filing this suit the Plaintiff discarded the 1st and 2nd Defendants’ counterclaim with the objective of having only his suit heard and not both the suit and counterclaim.

The Defendants relied on the cases of Theluji Drycleaners Limited v Muchiri & 3 Others [2002] 2 KLR 764 and Gitwany Investments Limited v Taj Mal Limited [2006] 2 EACA 76on the issue of double allocation and the finding that where the Chief Land Registrar issues a second certificate of title, it was a nullity and the holder of the subsequent title could only sue for damages.

The Plaintiff submitted that before filing this suit he withdrew the suit before the Magistrate’s Court. He added that none of the parties disputes the fact that the Magistrate’s Court lacked jurisdiction to hear and determine the dispute over the Suit Property. The Plaintiff relied on the decision of the Court of Appeal in Equity Bank Limited v Bruce Mutuku t/a Diani Tours Travel [2016] eKLRwhere the court reiterated that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to accord with jurisdiction and thereby sanctify an incompetent suit. The Plaintiff submitted that the jurisdiction to strike out a suit should be sparingly exercised by the court in exceptional circumstances.

The issue for determination is whether this court should strike out this suit or order its stay pending determination of the suit before the Chief Magistrate’s Court as the Defendants’ sought in their application. Both parties do not dispute the fact that the Magistrate‘s Court lacks the pecuniary jurisdiction to determine that suit since the value of the Suit Property exceeds the jurisdiction of the Chief Magistrate. The Plaintiff contended that he withdrew the suit before the Magistrate’s Court suit before filing this suit. What is left in that suit therefore is the 1st and 2nd Defendants counterclaim. The 1st and 2nd Defendants stated that they filed ELC Misc. Application Number E075 of 2020 seeking the transfer of CMCC No. 7980 of 2019 to this court for trial as ordered by the Chief Magistrate on 17/7/2020. The issues that are sought to be adjudicated upon in this suit have not yet been decided before the Chief Magistrates Court which in any event lacks jurisdiction to determine the dispute over ownership of the Suit Property.

The court is not persuaded that the best course of action to take in the circumstances of this case is to strike this suit out. It will serve the interest of justice to have the 1st and 2nd Defendant’s counterclaim filed before this court so that a determination on ownership of the Suit Property can be made by this court. In this court’s view, the 1st and 2nd Defendants will be compensated by costs for the suit which the Plaintiff filed then withdrew from the Chief’s Magistrate Court.

The Court declines to grant the application dated 19/10/2020. The 1st and 2nd Defendants are awarded the costs of that application.

DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF JUNE 2021.

K. BOR

JUDGE

In the presence of: -

Mr. D. Odunga and Mr. V. Rapando for the Plaintiff

Dr. Kamau Kuria for the Defendant

Mr. V. Owuor- Court Assistant