[2017] KEHC 9430 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CONSTITUTION AND JUDICIAL REVIEW DIVISION

MISCELLANEOUS CIVIL APPLICATION NO. 11 OF 2017

IN THE MATTER OF: AN APPLICATION OF FOR LEAVE TO APPLY FORR PREROGATIVE ORDERS OF CERTIORARI AND PROHIBITION

IN THE MATTER OF: SECTION 8 & 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA, SECTION 128 OF THE LAND ACT 2012, SECTION 26 OF THE LAND REGISTRATION ACT 2012 AND SECTION 13 OF THE ENVIRONMEMNT AND LAND COURT.

IN THE MATTER OF: ARTICLES 47 & 50 OF THE CONSTITUTION OF KENYA

REPUBLIC ………………………………………………….………..APPLICANT

VERSUS

JAMAL SHARIF SWALEH………….………………….……1ST RESPONDENT

THE LAND REGISTRAR MOMBASA…..……….………….2ND RESPONDENT

CHIEF LAND REGISTRAR……………..………...…….…....3RD RESPONDENT

JINGO TOURS AND SAFARIS LIMITED……..….……EX-PARTE APPLICANT

RULING OF THE COURT

The Application

1. By a Notice of Motion dated 25th April 2017, brought under Article 47 of the Constitution of Kenya, Section 4, 7, 8, 9, 10(1) and 11 of the Fair Administrative Action Act and Order 53 Rule 1-4 of the Civil Procedure Rules 2010, the ex-parte applicant herein seeks the following orders:

a) An Order of Certiorari to bring to this Court and quash decisions of the 2nd and 3rd Respondents of unlawfully transferring the suit property known as Plot No. 1292/I/MN CR. 11830 or any interest in the suit property to the 2nd Respondent.

b) An Order of Certiorari to bring to the High Court and quash the decisions and acts of the 2nd and 3rd Respondent of issuing a Certificate of Title over Plot No. 1292/I/MN CR. 11830.

c) An Order of Prohibition to prohibit the 1st Respondent from selling, transfer, charging, leasing or any dealing with any interest in the suit property or interfering with the applicants quite possession over the suit property known as Plot No. 1292/I/MN CR. 11830.

d) An Order of Mandamus compelling the 2nd and 3rd Respondent to rectify the register and remove/cancel the name of the 1st Respondent from the register of the suit property known as Plot No. 1292/I/MN/ CR. 1830 as the registered owner, and to enter or register the name of the Ex-parte Applicant Jingo Tours and Safaris Limited as the lawful owner and to issue a Certificate of Title in the name of Jingo Tours and Safaris within 30 days of this Order.

e) The leave granted do operate as a stay of purported sale, transfer, registration and charging of the suit property in the name of the 1st Respondent by the 2nd and 3rd Respondents and or any further interference with the applicant’s ownership and quite possession of the suit property namely plot no. 1292/I/MN CR. 11830.

f) Any other orders as set out in Section 11 of the Fair Administrative Action Act.

g) Costs.

2. The application is premised on the grounds set out on the face of the application, the statutory statement dated 10th April 2017 and the supporting affidavit of ABDULGADER SHARIFF SWALEH sworn on 25th April 2017.

3. The ex-parte Applicant alleges that at all material times it was the beneficial owner of the suit property known as Plot No. 1292/I/MN Cr. 11830/1 and that the suit property was unlawfully/illegally transferred to the 1st Respondent unbeknown to the applicant.

4. The ex-parte Applicant claims that the unlawful transfer was based on unlawful documents purporting to be a sale agreement, resolution to sell and transfer which were illegal documents as the purported resolution was not authorized or signed by any director of the applicant.

5. The ex-parte Applicant further claims that upon realizing the unlawfully transfer the directors of the applicant reported the matter to the police who investigated the document described as a transfer and found it to be a forgery or a document obtained through unlawful means.

6. The ex-parte Applicant alleges that the 1st Respondent was charged with the offences of forgery contrary to Section 349 of the Penal Code, obtaining by false pretense contrary to Section 320 of the Penal Code and uttering false documents contrary to Section 353 of Cap 63 before the Senior Principal Magistrate. The ex-parte Applicant further alleges that on 4/9/2015, the 1st Respondent was convicted on all counts and sentenced to a fine of Kshs. 70,000/= or one year in jail. The 1st Respondent paid the fine which was deducted from the cash bail.

7. The ex-parte Applicant alleges that there is no appeal pending on the matter and that the time for appeal has expired.

8. The ex-parte Applicant alleges that the registration of the 1st Respondent as the owner of the suit property was based on unlawful documents which were altered thus the registration is illegal.

9. The ex-parte Applicant claims that the decision to enter the name of the 1st Respondent as the registered owner of the suit property should be quashed because the registration was obtained through unlawful means.

10. It is the ex-parte’s case that unless restrained by this court the Respondents shall sell the suit property to innocent and un-suspecting members of the public and that no party will suffer prejudice if the orders sought are granted.

The Response

11. The 1st Respondent responded to the application by way of a replying affidavit sworn by JAMAL SHARIFF SWALEH on 22nd May 2017.

12. The 1st Respondent alleges that the ex-parte Applicant had abused the court process in relation to the subject matter by filling a multiplicity of suits/proceedings amongst them:

i. HCC 41 of 2011.

ii. J.R No. 77 of 2011 which is unprosecuted.

iii. HCCC No. 218 of 2011 which was unserved and unprosecuted.

iv. HCCC No. 484 of 2011 which is pending.

13. The 1st Respondent further alleges that following the Ruling of Justice Ojwang on 15th July 2011, the ex-parte Applicant withdrew HCCC No. 41 of 2011 and lodged HCCC 484 of 2011 in which he sought similar orders to those in HCCC No. 41 of 2011. The court dismissed the application after the court’s attention was drawn to the mischief.

14. The 1st Respondent claims that Petition of Appeal No. 179 of 2015 was lodged on 25th September 2015 against the Magistrate’s decision in Criminal Case No. 3118 of 2012.

15. It is the 1st Respondent’s case that to protect the dignity and process of this court from abuse by the ex-parte Applicant the instant application should be dismissed.

16. The Hon. Attorney General entered appearance for the 2nd and 3rd Respondents but did not file any response to the petition.

Ex-parte Applicant’s Response to the 1st Respondent’s Replying

Affidavit

17. The ex-parte Applicant responded to the Replying Affidavit of the 1st Respondent by way of a Further Affidavit sworn by ABDULGADER SHARIFF SWALEH on 9th June 2017.

18. The ex-parte Applicant confirmed that prior to filing this suit there were other cases before this Court being HCCC No. 484 of 2011, HCCC No. 41 of 2011, HCCC No. 218 of 2011 and JR No. 77 of 2011 and that in these cases the Applicant was challenging the process through which the 1st Respondent became the registered owner of the suit property as the registration was through fraud and or illegal means.

19. The ex-parte Applicant alleges that during the pendency of the aforementioned cases, Criminal Case No. 3118 of 2012, the Republic versus Jamal Sharif Swaleh was determined by the subordinate court and the 1st Respondent was convicted of making false documents namely the resolution and the transfer and using the said documents to transfer ownership from the ex-parte Applicant to himself.

20. The ex-parte Applicant alleges that HCCC 484/2011, HCCC 41/2011, HCCC 218/2011 and JR 77/2011 were all overtaken by events by virtue of the Judgment delivered in Criminal Case No. 3118 of 2012 and prosecuting the said cases was a waste of judicial time. The ex-parte Applicant further alleges that it was incumbent upon it to withdraw the said cases and instead file a judicial review application so that the court will not spend a lot of time litigating on the issue of fraud which had already been litigated upon.

21. The ex-parte Applicant claims that there is no abuse of the court process as it has made all attempts to have the said suits mentioned before the presiding judge for purposes of either prosecution, seeking directions, consolidation or withdrawing but the same has not been possible as the said files cannot be found in the court records or archives.

22. The ex-parte Applicant avers that it has made concerted efforts to have the files available as evidenced by the letter dated 14th May 2017 addressed to the Presiding Judge through the Deputy Registrar Mombasa and a letter dated 24th May 2017 seeking the criminal case file to be availed in court for purposes of mention to allow the Judge acquaint himself with the case which file has also been said to be missing.

23. The ex-parte Applicant alleges that there was no material non-disclosure on its part because when filing this suit it did disclose in the Certificate of Urgency information on the missing files. The ex-parte Applicant claims that the 1st Respondent cannot accuse it of abuse of court process as the 1st Respondent lodged a counterclaim in HCCC No. 418 of 2011 and he has not made any effort to prosecute the same.

24. The ex-parte Applicant alleges that it has withdrawn all the pending cases that were filed in 2011 so as to enable this court only deal with one matter.

25. The ex-parte Applicant’s case is that save for the allegation that the instant application is an abuse of court process, the 1st Respondent has not addressed the merits of the case or placed any evidence before the court to show the prejudice that he will suffer if the aforementioned cases are withdrawn and this suit is prosecuted as the lead case.

Submissions

26. The application came up for hearing on 12th June 2017 and the parties agreed to canvass the application by way of written submissions. The ex-parte Applicant filed its submissions on 29th June 2017 while the 1st Respondent filed its submissions on 12th July 2017. The 2nd and 3rd Respondents did not file any submissions. On 13th July 2017, the application came up for highlighting of submissions. Mr. Mogaka appeared for the 1st Respondent while Mr. Omondi held brief for Mr. Bondi for the ex-parte Applicant, and Mr. Ngare appeared for the 2nd and 3rd Respondents.

27. Mr. Omondi for the ex-parte Applicant submitted that prior to the filing of this suit there were other cases that were ongoing before this court being HCCC 484/2011, HCCC 41/2011, HCCC 218/2011, JR 77/2011. However, the said cases have now been withdrawn as shown at paragraph 24 of the affidavit of ABDULGADER SHARIFF SWALEH filed on 9th June 2017. Counsel submitted that the suits had been overtaken by events and all that was remaining was to place notices on the respective court files.

28. Mr. Omondi submitted that prosecuting the aforementioned cases would be a waste of time as they had been overtaken by events by virtue of Sections 35 and 44 of the Evidence Act. Counsel contended that this suit was not an abuse of court process as the ex-parte Applicant had made reasonable efforts to have the cases mentioned before the Presiding Judge for purposes of either prosecuting, seeking directions, consolidation or withdrawing but the same became impossible because the files were missing from the Mombasa High Court registry.

29. Mr. Omondi submitted that in any event if the aforementioned cases were still pending then this court should stay these proceedings awaiting the conclusion of the old cases. Counsel referred the court to the case of John Mwangi Wamai versus Teresa Gathiri Mwema [2015] eKLR.

30. On the issue of fraud and documents that were unlawfully obtained, Counsel submitted that the registration of the 1st Respondent as the legal owner of the suit property was effected through unlawful documents purporting to be a transfer and resolution to sell and that when the ex-parte Applicant discovered this it reported the matter to the police and a criminal case was instituted against the 1st Respondent being Criminal Case No. 3118 of 2012 in which the 1st Respondent was charged with forgery contrary to Section 349 of the Penal Code, obtaining by false pretense contrary to Section 320 of the Penal Code and uttering false documents contrary to Section 353 of Cap 63 before the Senior Principal Magistrate and he was convicted on 4th September 2015 .

31. Mr. Omondi submitted that the prosecution was based on the report by the document examiner who noted that the signature of ABDULGADER SHARIFF SWALEH had been forged and that the transfer was illegal.

32. Mr. Omondi submitted that this court should take the Judgment of the lower court as conclusive evidence under Section 35 of the Evidence Act that the registration of the 1st Respondent was through unlawful means and was effected through forged documents and further that the judgment was conclusive evidence of the legal character of the documents used to effect the transfer as required under Section 44 of the Evidence Act.

33. Mr. Omondi submitted that the 1st Respondent used illegal documents to effect the transfer of the suit property thus his registration as an owner is invalid and contrary to Article 40(6) of the Constitution of Kenya. Counsel further submitted that the unlawful documents could not transfer lawful interest to the 1st Respondent as section 3 of the Law of Contract requires the Transfer document to be signed and attested and in this case the signatures of the Directors of the ex-parte Applicant were forged. Counsel referred the court to the case of Solomon Amiani versus Salome Mutenyo Otunga [2016] eKLR.

34. Mr. Omondi submitted that there was need to revert the ownership of the suit property to the real owner so as to prevent the 1st Respondent from disposing the suit property to other third parties as the ex-parte Applicant will be left without any remedy in law because it would be extremely difficult, if not impossible, to obtain compensation from third parties who will claim to be bonafide purchasers for value without notice.

35. Mr. Mogaka, learned Counsel for the 1st Respondent submitted that the ex-parte Applicant has abused the court’s process as it has filed several other cases touching on the same matter as evidenced by the 1st Respondent’s bundle of documents marked “JSS-1” paginated 1-78. Counsel further submitted that the ex-parte Applicant has at no time disclosed the other subsisting cases and is therefore guilty of material non-disclosure. Counsel referred the court to the case of Kenya Planters Co-operative Union Limited versus Kenya Co-operative Coffee Millers & Another [2016] eKLR.

36. Mr. Mogaka argued that the ex-parte Applicant made an application to commence judicial review proceedings against the Respondents. The prayers sought were granted and in its substantive motion the ex-parte Applicant did not disclose existence of any other suit between itself and the Respondents herein. Counsel cited the case of Hussein Ali & 4 Others versus Commissioner of Lands, Lands Registrar & 7 Others [2013] eKLR where the court stated that:

“Where a party is guilty of material non-disclosure, such a party will be disentitled to the equitable remedy of injunction…”

And the case of The Owners of Motor Vessel Lillians versus Caltex Oil (Kenya) Limited C.A No. 50 of 1989 where the court stated that:

“It is well settled that a person who makes an ex-parte application to court that is to say in the absence of the other person who will be affected by that which the court is asked to do is under obligation to the court to make the fullest possible disclosure of all material facts within his knowledge and if he does not make the fullest disclosure, then he cannot obtain any advantage from the proceedings and he will be deprived of any advantage by him. That is perfectly plain and requires no authority to justify it”.

37. Mr. Mogaka submitted that since it is not disputed that the other existing suits are between the same parties over the same subject matter then there is a clear abuse of the court’s process. Counsel cited the case of Fort Hotel Limited T/A Coast Car Park & Amusement Centre versus Tourism Finance Corporation & Another [2016] eKLR where the court held that it is an abuse of the court process to file a multiplicity of suits seeking similar relief in respect of the same subject matter.

38. Mr. Mogaka submitted that the ex-parte applicant had filed a notice of withdrawal of the other suits but this was done after the 1st Respondent raised this issue in his replying affidavit. Counsel submitted that since the ex-parte Applicant abused this court’s process the orders sought should be denied.

39. Mr. Mogaka admitted that the 1st Respondent had been convicted of the offence of forgery contrary to Section 349 of the Penal Code, obtaining registration by false pretense contrary to section 320 of the Penal Code and uttering false documents contrary to Section 353 of the Penal Code. However, Counsel submitted that the conviction and sentence had been appealed against and the 1st Respondent is currently waiting the hearing and determination of the appeal being Petition of Appeal No. 79 of 2015.

40. Mr. Ngare, learned counsel for the 2nd and 3rd Respondents did not submit on the application.

Determination

41. I have carefully considered the application and the submissions of the parties. I find that the issues for determination are:

i. Whether the ex-parte Applicant has abused this court’s process?

ii. Whether the ex-parte Applicant should be granted the orders sought in the application.

42. On the first issue whether the ex-parte Applicant has abused the court process, I refer to the case of Yaya Towers Limited vs. Trade Bank Limited (In Liquidation) Civil Appeal No. 35 of 2000,where the Court of Appeal stated that:

“A plaintiff is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases…”

The meaning of abuse of court process was given in BEINOSI vs. WIYLEY 1973 (SA 721 [SCA]at page 734F-G)and adopted in the case of Muchanga Investments Ltd vs. Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLRwhere the court held that:

“What does constitute an abuse of process of the court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of ‘abuse of process.’It can be said in general terms, however, that an abuse of process takes place where the proceedings permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous, to that objective.”

43. The 1st Respondent herein has contended that the ex-parte Applicant did not disclose four other suits which relate to the subject matter herein; HCCC No. 41 of 2011, J.R No. 77 of 2011, HCCC No. 218 of 2011 and HCCC No. 484 of 2011. The ex-parte Applicant does not contest the existence of the said suits but claims that they were overtaken by events after the Judgment in Criminal Case No. 3118 of 2012 and that the said cases have since been withdrawn. It is should be noted that at the time of filing this suit, the ex-parte Applicant had not taken any steps to withdraw the aforementioned cases. It is only after the 1st Respondent raised the issue of existence of the said cases in his Replying Affidavit filed on 22nd May 2017 that the ex-parte Applicant took steps to withdraw the cases. After filing of the Replying Affidavit, the application came up for hearing on 31st May 2015, during which the ex-parte Applicant through its learned counsel Mr. Omondi indicated to the court that the ex-parte Applicant wished to respond to the replying affidavit filed on 22nd May 2017. This court granted leave of 7 days to the ex-parte Applicant to file a further affidavit explaining why it had not disclosed existence of the other suits. The ex-parte Applicant filed its further affidavit on 9th June 2017 and it is in this affidavit that the ex-parte Applicant confirmed the existence of this suit. The deponent ABDULGADER SHARIFF SWALEH, a director of the ex-parte Applicant averred:

“3. That I am aware that prior to the filling of MISCELLANEOUS CIVIL APPLICATION NO. 11 OF 2017, there were ongoing cases before this Honourable court being HCCC 484/2011, HCCC 41/2011, HCCC 218/2011, JR 77/2011.

7. That all this suits were filled in the year 2011 whilst the conviction in the Criminal Case number 3118 of 2012 was delivered on the 14/09/2015.

9. That prosecuting the said cases would be a waste of precious judicial time because the cases would consume a lot of precious judicial time which include but not limited to; mentions, services, hearings, pre-trials, while there is conclusive evidence and a judgment to that effect thus there is no point of re-litigating.

11. That there is no abuse of court process with regards to the withdrawal of the said suits because I have made all reasonable efforts possible to have the said cases be mentioned before the presiding judge for the purposes of either, prosecution, seeking directions, consolidation or withdrawing but the same has not been possible because the files are missing in the Mombasa High Court registry.”

The ex-parte Applicant attached to the further affidavit notices of withdrawal of the four suits.

44. This court notes that in all of the ex-parte Applicant’s documents, prior to the filing of the further affidavit, it only spoke of the existence of Criminal Case No. 3118 of 2012 which has been concluded. Section 6 of the Civil Procedure Act provides as follows:

“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, litigating 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.”

45. Upon a keen perusal of the bundle of exhibit attached to the Replying Affidavit sworn by JAMAL SHARIFF SWALEH, I find that all the earlier suits were about the suit property and more precisely about its ownership. However, not all the prayers sought in the earlier suits are similar to those sough in this instant application. In HCCC No. 41 of 2011, the ex-parte Applicant made an application which was later dismissed by the learned Justice Ojwang (as he then was) on 15th July 2011. The ex-parte Applicant then went ahead to file HCCC 484 of 2011 in which he made a similar application as that which was dismissed. In JR No. 77 of 2011 the ex-parte Applicant sought for orders of certiorari and prohibition against the respondents herein. The ex-parte Applicant claims that at the time the suits were warranted but after the conclusion of criminal cases No. 3118 of 2011 the previous suits were overtaken by events, making it prudent for the ex-parte Applicant to withdraw the previous suits.

47. The 1st Respondent cited with the approval of this court the case of Fort Hotels Ltd t/a Coast Car Park & Amusement Centre versus Tourism Finance Corporation & Another [2016] eKLR that relied on the case of Fluer Investment Limited versus Permanent Secretary Ministry of Roads & 4 others [2012] eKLR which stated:

“….In my view, this Petition is another suit filed to litigate the same matter between the same parties seeking similar relief. It is an abuse of the court process to file a multiplicity of suits seeking similar relief in respect of the same subject matter.”

I find the ex-parte Applicant to have been mischievous in its actions; first for not mentioning the existence of the other suits and, second, for only withdrawing the previous suits when the existence of the previous suits was brought to the attention of this court by the 1st Respondent. It is my view that the ex-parte Applicant through its actions intended to mislead this court.

48. The above notwithstanding, it is to be noted that although the 1st Respondent was convicted in Criminal Case No. 3118 of 2012, he has appealed the said conviction. The ex-parte Applicant’s case appears to be mainly pegged on that conviction. If that be so, then until the appeal process is exhausted, the ex-parte Applicant’s application to quash the said title is clearly pre-mature.

49. For the foregoing reasons I dismiss the application dated 25th April 2017. The ex-parte Applicant to bear the costs of this application.

Dated, Signed and Delivered in Mombasa this 5th day of October, 2017.

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Omondi for Ex parte Applicant

Mr. Mogaka for 1st Respondent

Mr. Ngare for 2nd and 3rd Respondent

Mr. Kaunda Court Assistant