[2020] KEELC 2603 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO 216 OF 2018

PETER NJOROGE WAINAINA ..............................PLAINTIFF/RESPONDENT

VERSUS

PEMUGA AUTO SPARES LIMITED............1ST DEFENDANT/RESPONDENT

RAJAA STONES LIMITED..........................2ND DEFENDANT/ RESPONDENT

PETER MUKIRI GATERI.............................3RD DEFENDANT/RESPONDENT

AGNES WANJIKU MUKIRI..........................4TH DEFENDANT/RESPONDENT

NATIONAL LAND COMMISSION..............5TH DEFENDANT/RESPONDENT

THE DISTRICT LAND

REGISTRAR THIKA......................................6TH DEFENDANT/RESPONDENT

THE HON. ATTORNEY GENERAL.............7TH DEFENDANT/RESPONDENT

AND

HFC LIMITED....................................1ST INTERESTED PARTY / APPLICANT

BENARD KIHIKA KIMONDO.....2ND INTERESTED PARTY/RESPONDENT

RULING

The matter for determination is the Notice of Motion Application dated 25th June 2019, by the 1st Interested Party/ Applicant seeking for orders that;-

1. This Honourable Court be pleased to issue Orders expunging the property known as Thika Municipality Block/14/975, from these proceedings.

2. Upon granting of prayer no. 2 herein above, the 1st Interested Party/ Applicant be discharged from these proceedings.

3. Costs be awarded to the 1st Interested Party Applicant.

The Application is premised on the grounds that the 3rd Respondent has failed to service certain facilities advanced to it by the Applicant Bank, which are secured by inter alia the property known as Thika Municipality Block 14/975, by dint of a duly registered charge dated 13th November (the charged Property) and as such, he is in default to the Applicant bank to the tune of Kshs.35,063,34. 59 . That the bank issued the requisite statutory notices and now seeks to exercise its statutory right of sale over the suit property. Further, that the Plaintiff/ Respondent has however instituted a suit based on the mistaken belief that the properties enumerated purportedly belong to the Estate of the late Wainaina Kihiariaand the Plaintiff/ Respondent has sought orders of permanent injunction; a declaration that the titles be annulled with regards to the charged property.

It was further contended that a reading of the pleadings indicates that there is no cause of action or claim against the charged property. Further that the Applicant was only a necessary party and proper party to these proceedings to the extent that the charged property is charged in its favour and thus the present proceedings involving the charged property prejudices the Applicant.

In her supporting Affidavit, Eunice Kamau, the Assistant Legal Manager of the Applicant Bank reiterated the contents of the grounds in support of the Application and further averred that there is no specific reference/ claim made by the Plaintiff/ Respondent nor any evidence regarding the charged property; that in listing the land parcels, which belonged to the Deceased estate, the same does not include the charged property, Further that the 2nd Defendant/Respondent previously instituted proceedings at the National Land Commission seeking review of grants issued to the 2nd to 5th Defendants/ Respondents with regards to the charged property and the same was heard and dismissed and a Court has already determined that the Deceased was entitled to only 20 acres out of the government land that the Deceased occupied.

She further averred that the Charged property was included in these proceedings as mere afterthought and that the questions concerning the other suit properties would still be effectually and fully determined without the Applicant being a party to the proceedings. That it is in the interest of Justice that the prayers sought are granted.

The Application is opposed and the Plaintiff/ Respondent, Peter Njoroge Wainaina swore a Replying Affidavit on 16th July 2019, and averred that the Applicant’s suit is mischievous, dishonest and deliberately intended to mislead the Court. He averred that the Charged property was part of his father’s Estate but has since been registered in his name as evidenced by Lease Documents dated 6th June 2016; Certificate of lease dated 19th July 2016, Certificate of official search dated 9th April 2019 and an extract of the green card dated 5th April 2019. It was his contention that it is clear that there is no way the 2nd Respondent or any other party could have legally charged his property and that the chargee and chargor are criminally liable for using forged and fake documents in an attempt to dispossess him of his property. He further averred the 2nd Defendant/ Respondent having acted fraudulently cannot urge the Court to ratify their illegal activities by expunging the charged property from the suit. He further averred that it was upon the 1st Interested Party/ Applicant to undertake all due diligence to ensure that the security rendered was genuine.

He also averred that the Interested Party’s/Applicant argument that he has not laid any claim to the charged property in his pleadings and documents is deliberately misleading as the lease and certificate of lease registered in his name are included in his Amended list of documents dated 10th April 2019, and he would therefore stand to suffer great prejudice and irreparable damage and loss if the property was expunged from the main suit. He further averred that he has been informed by his Advocates on record which advice he believes to be true that the issues raised in the Application and his response thereto can only be finally determined at the main hearing and not at this preliminary stage. Therefore, he urged the Court to dismiss the instant Application.

The 1st to 4th Defendants/ Respondents also filed a Replying Affidavit sworn on the 19th of July 2019, by Peter Mukiri Gateri, the 3rd Defendant/ Respondent herein. He averred that he has been advised by his Advocates which advices he believes to be true that the Application is misconceived partly because it is a disguised Application for striking out the Plaintiff’s suit which it had no locus standi and because the doctrine of lis pendens demands that the Interested Party either participates in the instant suit or waits until the suit is heard and determined when its rights will be clear.

He further averred that the Plaintiff/ Respondent is entitled to a fair hearing and have his day in Court . Further that his witness statement shows that the Plaintiff/Respondent has a wrong sense of entitlement. It was further averred that it is undisputed that the 1st Interested Party/ Applicant extended loan facilities to the 2nd Defendant/ Respondent and that only one statutory notice has been issued to the 2nd Defendant/Respondent dated 23rd May 2017, and that the others are pre listing notifications of the intention of the 1st Interested Party/ Applicant to list adversely the 2nd Defendant/ Respondent with the Credit Reference Bureau. Further that the Interested Party/ Applicant has not explained why it did not exercise its power of statutory sale in 2017, upon issuing the statutory Notice.

He contended that the 2nd Defendant’s intention was to purchase the property for the purpose of developing the houses, but after obtaining the loan facilities and purchasing the property, it had challenges in developing the same as the issue of ownership arose and it was decided that the developments be halted. He further averred that the 2nd Defendant/ Respondent is still interested in the development plans, but that it is waiting for the determination of ownership of the suit property. He contended that the Plaintiff/ Respondent had taken its complaint to the National Land Commission and upon determination, he still filed another suit in this Court.

It was his contention that the Plaintiff/ Respondent alleges that his late father owned the subject matter of this suit which includes the charged land. Further that it is also alleged that the 1st to 4th Defendants/ Respondents did not have a good title in order to charge the Charged property to the 1st Interested Party and sell Thika Municipality Block 14/975,to the 2nd Interested Party/Respondent and it is thus clear that the issue of ownership is contentious and disputed. Therefore, the 1st Interested Party/ Respondent is seeking a piece meal resolution of the matter as summary judgment. He also averred that upon resolution of the matter, the 1st Interested Party/ Applicant shall still have a right to statutory sale upon determination of the entire suit. Further that he has been advised by his Advocates that section 90(3) of the Land Act provides the remedies available to the 1st Interested Party/ Applicant which is in line with the doctrine of lis pendens that the 1st Interested Party/ Applicant awaits the determination of the issue of ownership that requires that the Court hears evidence of all the parties. Further that the 1st Interested Party/ Applicant shall not suffer any prejudice as the loan continues to accrue interest and penalties and that it shall have to be paid.

The Application was canvassed by way of written submissions which the Court has now carefully read and considered. The Court has also read considered the pleadings of the parties, the Application , the Affidavits in support and the Replying Affidavit and finds that the issue for determination is; whether the 1st Interested Party/ Applicant is entitled to the orders sought.

The Court notes that the Applicant has submitted that the Purported Claim concerning the charged property being Thika Municipality Block 14/975 has been barred by the doctrine of Res Judicata as it is well settled law that litigation must come to an end and that parties must be allowed to enjoy the fruits of their Judgment. This Court is skeptical as to whether the 1st Interested Party/ Applicant have locus standi to bring the said Application, given that the Applicant has not provided any proof that it holds any right to the said charged property, The Court further notes that the issue was only brought up during submissions. Further that the Applicant never pleaded the issue of Res Judicata,in its Application and it is therefore not proper to bring it out during submissions as it denies the other parties an opportunity to respond to the same. See the case of Daniel Toroitich Arap Moi & Another …Vs… MwangiStephen Murithi & Another (2014) eKLR where he Court held that:

“Submissions cannot take the place of evidence. The Respondent had failed to prove his claim by evidence what appeared in submissions could not come to his aid---Submissions are generally parties “marketing language....”

Further Parties are bound by their pleadings as was elicited in the case of Joseph Mbuta Nziu ….Vs… Kenya Orient Insurance Company Ltd [2015] eKLR where the court referring to a decision of Nigerian Supreme Court stated-“In ADETOUN OLADEJI (NIG) LTD …Vs… NIGERIA BREWERIES PLC S.C. 91/2002, Judge Pius Aderemi J.S.C. stated as follows;

‘…. it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.”

It is further the Interested Party’s / Applicant’s contention that the Plaintiff’s/ Respondent’s pleadings do not reflect its evidence and that it has not made any attempt to amend its pleadings to include the specific references to the charged property. It is upon this backbone that the Applicant has also contended that the Plaint does not reveal any cause of action as against the charged property and therefore the Court should consider expunging the charged property from the proceedings and thus discharging it also from the proceedings.

It is the Court’s considered view that the very fact that the Interested Party/ Applicant is seeking to expunge the Charged property from the proceedings, it would primafaciely mean that they are part of the proceedings. From the Plaint dated 23rd July 2018, it is clear that the Plaintiff/ Respondent had sought a permanent injunction against the Defendants/ Respondents with regards to suit properties, Thika Block 14/968-983 and Titles Nos Block 14/1287-1417. The Charged property being Thika Municipality Block 14/975(the charged property) falls within the purview of 14/968-983.

Further, in his Plaint, the Plaintiff/ Respondent alleged that the said properties were allocated to his Deceased father and that the 1st to 4th Defendants/ Respondents have illegally encroached upon the said properties. Further the Plaintiff’s Amended Plaint dated 10th April 2019, and filed on 12th April 2019,has retained the Contents seeking to have a permanent Injunction issued against the 1st to 4th Defendants/ Respondents in respect to the suit properties and the charged property being one of them. Though the 1st Interested Party/ Applicant has alleged that the Amended Plaint was an afterthought, the Court is not persuaded by the said reason. First because the law allows a party to amend its pleadings at any stage before close of pleadings. Further the Plaint was filed on 12th April 2019, way before the instant application was filed

In the case of Susan Rokih …Vs… Joyce Kandie & 6 others [2018] eKLR the Court stated that;

‘…..The court went further to define what constitutes a cause of actionand held that a cause of action referred to an act on the part of the defendant which gave the plaintiff a cause of complaint.’

With the above definition of a Cause of action in mind, It is this Court’s considered view that the Plaintiff/ Respondent having alleged that the charged property was illegally acquired, it sure did raise a cause of complaint, hence a cause of action with regards to the charged property. Whether or not the same is merited, that is not for the Court to decide at this time. It is trite that the Court should always strive to give a party a chance to be heard no matter how weak its case may be . See the case of Susan Rokih …Vs… Joyce Kandie & 6 others(supra)where the Court held that;

“In my view, the plaintiff has disclosed in the plaint the facts which found her complaint against the 2nd defendant. Whether the same presents a strong or weak case, is not for me to consider or determine at this juncture in the instant application. A reasonable cause of action is not one that must succeed in the trial of the action but one which has some chance of success”

Having carefully considered the facts of this case, the affidavits filed by all parties, the rival submissions herein and the relevant provisions of law, and authorities cited, the Court finds that the Notice of Motion Application dated 25th June 2019, is not merited and the same is dismissed entirely with costs to the Plaintiff/ Respondent and the 1st to 4th Defendants/ Respondents herein.

It is so ordered.

Dated, signed and Delivered at Thika this 14th day of May 2020

L. GACHERU

JUDGE

Court Assistant……………………….

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

By Consent of ;

………………………….………... for the Plaintiff/Respondent

M/s Kamau Kuria advocates for the 1st – 4th Defendant/Respondent

……………………………………. for the 5th Defendant/Respondent

……………………………..…….. for the 6th Defendant/Respondent

……………………………………...for the 7th Defendant/Respondent

………………………………………for the 1st interested Party/Applicant

………………………………………for the 2nd interested Party/Applicant

L. GACHERU

JUDGE