[2022] KEELC 542 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC CASE NO. 72 OF 2018

PETER NDUKUTHYO

PATRICK MANGA KAMUNYU

ADAN MUHAMMAD (Suing as Trustees of

MAASAI VILLAGE SELF-HELP WOMEN GROUP............................PLAINTIFF

VERSUS

WESTWOOD PROPERTIES LIMITED..............................................DEFENDANT

RULING

1. Maasai Village Self Help Women Group [the Group], through Peter Ndukuthyo, Patrick Manga Kamunyu and Adan Mohammad, initiated this suit in the High Court at Nairobi through a plaint dated 8/4/2016. The plaintiffs’ case was that it was “the absolute registered owner of Land Parcel NumberINDUSTRIAL PLOT NO G-THIKA MUNICIPALITY, measuring 1. 100 HA with indefeasible Letter of Allotment”. They contended that the defendant was, in blatant breach of the law, continuing to construct buildings on the land without the Group’s consent. Consequently, they sought a permanent injunction against the defendant. Further, they sought an eviction order and an award of mesne profits against the defendant.

2. The defendant filed a statement of defence dated 10/9/2020, through the firm of Menezes & Partners. It averred that it was a stranger to the plaintiffs’ claim. It further averred that it was the registered owner of Land Reference Number 4953/2193comprised in Grant Number IR 122400, having purchased it from its previous registered owner, one Peter Mbuthia Mwaura on 16/8/2011. The defendant contended that the land was transferred to it on 31/10/2011. The defendant added that it carried out due diligence prior to purchasing the land and the due diligence exercise confirmed that: (i) the title was preceded by a letter of allotment dated 25/9/1992, issued to Peter Mbuthia Mwaura; (ii) the size and location of the land was edged in red in Plan No TP 10/1/XIX/192A; (iii) the size and location was confirmed by Approved Part Development Plan No 311 and Survey Plan No F/R No 234/29; and (iv) the land was clearly indicated in the Registered Index Map. It was the case of the defendant that the plaintiff had no lawful claim over the land.

3. The defendant added that three other preceding suits had been filed by the plaintiffs in relation to the suit property, hence this suit was an abuse of the process of the court.

4. On or about 12/10/2021, the defendant brought a notice of motion dated 28/9/2021, inviting the court to strike out the suit in its entirety. The defendant made an alternative plea for an order requiring the plaintiff to provide security for costs in the sum of Kshs 3,000,000, to be deposited in an interest earning bank account. The said application is the subject of this ruling.

5. The application was supported by an affidavit sworn on 28/9/2021 by Niraj Anju Shah. She reiterated the defendant’s defence and added that the plaintiff’s suit was frivolous, scandalous, vexatious and manifestly an abuse of the process of the court. She added that the matters in dispute in this suit had been directly and substantially in issue in the following three preceding suits: (i) CMCC No 842 of 2011 Thika - Peter Ndukuthyo & others v Mohan Shah & Peter Mwaura Mbuthia; (ii) HCCC No. 419 of 2013 Kerugoya – Peter Ndukuthyo & others v Lydia Wangondu & Mohan Shah; (iii) Milimani ELC No 708 of 2014 – Nairobi - Peter Ndukuthyo & others v Lydia Wangondu & Mohan Shah.

6. Mr Shah added that the issues of fact and/or law in this suit as between the plaintiffs and the defendant had been determined conclusively in some of the above suits, and in any event, were also pending hearing and determination in Milimani ELC No 708 of 2014. He contended that by filing numerous suits in various courts against the defendant in relation to the same property, the plaintiff was abusing the court process. He deposed that the Group did not have any known assets which would be liquidated to satisfy an award of costs. He added that the defendant was incurring heavy costs in defending the numerous suits. He exhibited pleadings and orders relating to the preceding suits.

7. The application came up for interpartes hearing on 1/11/2021. On that day, Ms Kamunya appeared for the defendant /applicant while Ms Fundi appeared for the plaintiffs. Ms Fundi requested for an adjournment on the ground that their instructing client had been unwell and that they had just come on record. She specifically requested for 14 days within which to file and serve a response to the application. The court acceded to the request and adjourned the hearing of the application to 17/1/2022. Further, the court directed the plaintiffs to file and serve their response within 14 days. Parties were directed to exchange written submissions upon service of a response by the plaintiffs.

8. The plaintiffs did not attend court on 17/1/2022. Counsel for the defendant informed the court on that day that the plaintiffs had not served the defendant with a response to the application. Consequently, the application was argued without any response nor opposing submissions by the plaintiffs.

9. Arguing the application, Ms Kamunya submitted that the plaintiffs had filed several suits in different courts seeking to litigate the same matter against the same parties. Counsel added that some of the suits had been determined. Counsel made reference to the annexures to the supporting affidavit and submitted that Nairobi HCCC No 116 of 2012 had been resolved through a consent that required parties to appoint surveyors who were to visit the suit property and file a joint report. Counsel contended that the said suit was effectively determined through the joint surveyor’s report, only for the plaintiffs to file the present suit three years later. Counsel added that the plaintiffs had three other pending suits, namely: (i) CMCC No 842 of 2011 Thika - Peter Ndukuthyo & others v Mohan Shah & Peter Mwaura Mbuthia; (ii) HCCC No. 419 of 2013 Kerugoya – Peter Ndukuthyo & others v Lydia Wangondu & Mohan Shah; (iii) Milimani ELC No 708 of 2014 – Nairobi - Peter Ndukuthyo & others v Lydia Wangondu & Mohan Shah. Counsel argued that the plaintiffs were engaged in mischief. Counsel urged the court to strike out the suit.

10. The plaintiffs elected not to respond to the application dated 28/9/2021. They also elected not to submit on the application. I have considered the said application and the submissions tendered in support of the application. I have also considered the relevant legal framework and jurisprudence. Two questions fall for determination in the application dated 28/9/2021. The first question is whether this suit is res judicata.The second question is whether there is a proper basis for ordering the plaintiffs to provide security for costs. I will make brief sequential pronouncements on the two questions.

11. The doctrine of res judicata is contained in Section 7 of the Civil Procedure Actwhich provides as follows:

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

12. I have looked at the annexures exhibited in relation to the preceding suits. Thika CMC Civil Case No 842 of 2011 was filed by the above group through the above three plaintiffs against Mohan Shah andPeter Mwaura. The defendant/applicant was not a defendant in the said suit. It is indicated by the defendant that the said suit was withdrawn in 2012 after a preliminary objection was filed. The issues in the suit were therefore not determined on merits. Given that the parties in the said suit were different and the issues were not determined, the doctrine of res judicata cannot be invoked on the basis of the said suit.

13. Nairobi HCCC (ELC) No 116 of 2012 was filed on 7/3/2012 by the same group through the above plaintiffs against Peter Mbuthia Mwaura and Westwood Properties Limited. A perusal of the plaint reveals that the suit property in the said suit was described asUNSURVEYED INDUSTRIAL PLOT NO A – THIKA which is not the same as the suit property in the present suit which is described asINDUSTRIAL PLOT NO G – THIKA MUNICIPALITY. The defendants in the said suit filed a defence indicating that they were the registered proprietors of LR No 4953/2193. Since the suit property which the plaintiffs were claiming in the said suit bore a different description, I cannot conclusively say at this stage that the suit property is the same. It is, however, noted from the ruling of Gitumbi J,dated 1/11/2013, that the joint surveyors established that on the ground, LR No 4953/2193, which at that time was under construction by the defendant, was the same parcel that the plaintiffs in the said suit were claiming. In my view, while it may not be prudent to uphold the doctrine of res judicata in the above circumstances, this is perhaps a factor to be taken into account when disposing the second question which relates to security for costs.

14. Nairobi ELC No 1185 of 2013 [formerly Kerugoya ELC No 419/2013] was filed by the plaintiffs against Lydiah Wang’ondu and Mohan Shah. The plaintiffs initially described the suit property in the said suit as Thika Municipality Block 6/1065 [formerly known as Unsurveyed Industrial Plot No A – Thika by virtue of a letter of allotment dated 3/1/1999]. Since the defendant in the instant suit was not a party to the above suit, there would be no proper basis for invoking the doctrine of res judicata.

15. In light of the foregoing, my finding on the first issue is that, at this point, it cannot be conclusively and definitively be said that this suit is res judicata.

16. The second issue is whether there is a proper basis for requiring the plaintiffs to provide security for costs of the defendant. It does emerge from the evidence presented to the court that the plaintiffs have not been clear on the identity of the property which they claim to be owned by the Group. Indeed, in their application dated 12/5/2014, filed in Milimani (Nairobi) ELC Case No 708 of 2014, the plaintiffs sought leave to amend the plaint to change the description of the suit property. Declining to grant the plea, Gitumbi J rendered herself on the application as follows:

“There are some practical difficulties that I will encounter should I allow the plaintiff to amend its plaint as proposed. The first difficulty I can see is that while relying on the fact that the suit property in this suit being Thika Municipality Block 6/1065 formerly known as Unsurveyed Industrial Plot No A Thika was the same as the suit property in ELC No 116 of 2012, I proceeded to consolidate the two files into one. Further, Justice Olao, while relying on the same assumption proceeded to deliver a ruling in this matter. Allowing the proposed amendment will no doubt make it difficult to continue the two consolidated suits as such. It is the plaintiff’s responsibility to ensure that its case is properly laid out in its plaint to facilitate expeditious disposal by the court. If the plaintiff fails in this responsibility, it is bound to suffer the consequences. In this particular suit, I find that it is not just to allow the proposed amendments sought after by the plaintiff. The plaintiff has the option of withdrawing the consolidated suit and filing a fresh suit citing the correct subject matter.”

17. It does emerge from the materials presented to the court at this stage that the plaintiffs brought this suit after Gitumbi J declined to grant their plea for amendment. Taking into account the evidence on record, including the pleadings relating to the previous suits and the surveyor’s report which Gitumbi J rendered herself on, it is probable that the plaintiffs may have subjected the defendant to at least two suits in relation to the same property which on the ground is occupied by the defendant. Put differently, the plaintiffs may be using different details to describe the same property and thereby subjecting the defendant to costs that could be avoided. Further, the defendant’s contention that the group represented by the plaintiff has no known assets has not been controverted. In the circumstances, it is my finding that there is a proper basis for requiring the plaintiffs to provide security for the ultimate costs of this suit.

18. In the end, the defendant’s notice of motion dated 28/9/2021 is disposed in the following terms:

(a) The plaintiffs shall, within 45 days from today, deposit in court a sum of Kshs 1,500,000 as security for costs of the defendant.

(b) Upon depositing the said sum, the parties’ respective advocates on record shall within 30 days from the date of deposit open a joint interest earning account where the said money shall be transferred and held until this case is heard and determined.

(c) The plaintiffs shall, within 45 days from today, file and serve a single, bound, paginated and indexed bundle of pleadings, witness statements, and documentary evidence.

(d) In default of (a) or (c) above, this suit shall stand dismissed with costs to the defendant.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 24TH DAY OF MARCH 2022

B M EBOSO

JUDGE

In the presence of: -

Peter Ndukuthyo - 1st Plaintiff present

Ms Kamunya for the Defendant/Applicant

Court Assistant: Lucy Muthoni