[2018] KEELC 1217 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO.691 OF 2017

RUTH MUTHONIKARIUKI (Suing as the

administrator of the Estate of SARAH WANJIKU

MAGU MBUA (NYAMUIRU)...............................................PLAINITFF/APPLICANT

VERSUS

JOHN MBUA MUTHONI & PETER WANGURURO

NDICHU(Sued as the Administrators of the Estate of

MUTHONI MBUA WANGURURO..........................DEFENDANTS/RESPONDENTS

RULING

The Plaintiff herein Ruth Muthoni Kariukisuing as the Administratorof the Estate of Sarah Wanjiku Magu Mbua (Nyamuiru)has sought for various orders against the Defendants herein who are sued as administrators of the Estate ofMuthoni Mbua Wangururo. The Plaintiff has sought for these orders among the many others:-

1) A declaration that the Plaintiff is entitled to exclusive and unimpeded right of possession and occupation of 1/3 of all that piece of land known as Githunguri/Kiairia/971, T35 and T38 and that the Defendants, their children, agents, servants or any other party claiming title under them should not lay a claim on her mother’s tile Githunguri/Kiairia/971 T35 and T38.

2) An order declaring that the late Muthoni Mbua Wangururo held Githunguri/Kiairia/971 T35 and T38 for the trust and benefit of herself, the house of the late Jedida Njeriand the house of the late Sarah Wanjiku Magu Mbua (Nyamuiru).

Simultaneously, the Applicant filed a Notice of Motion applicationdated 31st July 2017 and sought for the following orders:-

a) Spent

b) Spent

c) An injunction does issue as against the Defendants, their servants and or agents under the Doctrine of Lis Pendens preserving the suit property and prohibiting any dealings with1/3of Githunguri/Kiairia/971, T35 and T38 pending the hearing and determination of this suit.

d) The costs of this application be borne by the Respondents.

The said application is premised on several grounds among them being :-

1) That Mbua Wangururo (deceased) and grandfather to Ruth Muthoni Kariuki was the initial owner of a big un-demarcated and un-adjudicated piece of land in Githunguri/Kiairia which was approximately 9. 37 Hactares from which Githunguri/

Kiairia/971, T35and T38 and Githunguri/Kiairia/627 were all excised.

2) The late MbuaWangururo (deceased) divided his un-demarcated and un-adjudicated piece of land in Githunguri Kiairia among his 6 wives (Ithaku cia atumia a Mbua), where he had in Githunguri/Kiairia/971, T35 and T38 registered within the homestead of his 1st wife (who did not have sons) and Githunguri/Kiairia/627, jointly registered to his other wives as they had sons.

3) The late Mbua Wangaruro (deceased) in deliberately having Githunguri/Kiairia/971, T35 & T38hived off and registered separately feared that the homes with sons would muscle out the homes without sons and thus had Githunguri/Kiairia/

971,T35 &T38first registered in the name s of Maina Muigani to hold in trust of his wife, Muthoni Mbua and her other siblings sisters’ husbands Jedida Njeri(deceased) and Sarah Wanjiku Magu Mbua (Nyamuiru-Deceased) had since passed on.

4) Githunguri/Kiairia/971,T35 & T38 being customary clan land was held by Muthoni Mbua in trust for herself and her siblings Jedida Njeri (deceased) and Sarah Wanjiku Magu Mbua (Nyamuiru) deceased.

5) That the said John Mbua Muthoni and Peter Wangururo Ndichu have since further applied to have cautions placed by the Applicant at the instance of their mother Muthoni Mbua Wangaruro(deceased) removed so as to sell the fraction belonging to the deceased’s sister Sarah Wanjiku Magu Mbua (Nyamuiru) notwithstanding that the same does not belong to Muthoni Mbua Wangururo.

6) That unless the orders sought are granted the suit property will be in danger of being dealt with, transferred, entered, disposed off and/or abused in which event the Applicant will suffer irreparable loss as she has already put up her permanent home on the same as well as interred the remains of her mother Sarah Wanjiku Magu Mbua (Nyamuiru) on the same.

The application is also supported by the Affidavit of Ruth Muthoni Kariuki, the Applicant herein who reiterated the contents of the grounds in support of the application and averred that her grandfather the late Mbua Wangururo (deceased) was the initial owner of the un-demarcated and un-adjudicated piece of land in Githunguri Kiairia which was approximately 9. 37 Hactares from which the suit properties were excised. She further averred that the suit properties Githunguri/Kiairi/971, T35 & T38 were registered within the homestead of the 1st wife who did not have sons. Therefore the said parcels of land were registered in the name of Maina Mungani to hold it in trust for his wife Muthoni Mbua as her other sisters Jedida Njeri and Sarah Wanjiku Magu Mbua (Nyamuiru) husbands had since passed on. The Applicant further averred that the late Maina Mungani did acknowledge on 15th August 1975, that he would relinquish the suit properties, Githunguri/Kiairia/971,T35 & T38 to his wife and also did acknowledge that the suit land was customary clan land and the same was later transferred to the Defendant’s mother, Muthoni Mbua to hold in trust for her two sisters Jedida Njeri and Sarah Wanjiku Magu Mbua (Nyamuru). That the three sisters had built houses on the said parcel of land. She further averred that Muthoni Mbua, the mother to the Defendants delivered to her granddaughter Hannah Wanjiku Ndegwa the title documents for the three parcels of land.

That upon the demise of Muthoni Mbua Wangururo, the Defendant filed Succession Cause No.452 of 2012 later Kiambu Succession Cause No.20 of 2017, “The Estate of Muthoni Mbua Wangururo”. The said administrators now intends to distribute the three suit properties to themselves together with Simon Kagiri Kinyanjui who is not a beneficiary of the said Estate. It was her contention that the Defendants/Respondents have disregarded that the suit property was held by Muthoni Mbua Wangururo in trust for herself and her two sisters Jedida Njeri and Sarah Wanjiku Magu Mbua (Nyamuiru) both deceased. Therefore a 1/3 of the suit properties belonged to the Estate of Sarah wanjiku Magu Mbua (Nyamuiru) deceased and can only be held in trust. Further the Defendants/Respondents intends to sell the portion of land belonging to Applicant and have thus sought to have the cautions placed on the suit properties at the instance of Muthoni Mbua Wangururo removed. The Applicant also contended that she has put up a permanent structure on the suit property and her mother was interred on the said property and thus the need to preserve the 1/3 of Githunguri/Kiairia/971, T35 & T38 pending the hearing and determination of the suit.

The Notice of Motion is vehemently opposed by the Defendants/Respondents who jointly swore a Replying Affidavit on 28th August 2017 and averred that the suit herein is Resjudicata as the Plaintiff/Applicant’s claim to beneficial interest based on some trust to 5 titles including the suit properties herein were raised in Succession Cause No.452 of 2012 (formerly Nairobi) but now Succession Cause No.20 of 2017 transferred at Kiambu High Court. However the Applicant’s claim against the Defendants on allegation of beneficial interest founded on claim of trust was dismissed with costs on 20th January 2017 and no Appeal was filed thereafter. They further averred that the suit herein is vexatious as it is based on the same claim, which was adjudicated by a competent court between the same parties. The Respondents further deposed that they have been advised by their advocate on record that the suit property is time barred under ‘The Limitation of Actions Act, Cap 22 Laws of Kenya’ as the cause of action arose between 1974/1975 when the deceased Muthoni Mbua Wangururo was registered as the absolute owner and she died on 10th December 2005, without the Applicant/Plaintiff claiming any beneficial interest against the deceased in her lifetime. That though the Plaintiff/Applicant lodged cautions over the five parcels of land claiming beneficial interest on 12th June 2003, she did not file any suit against the deceased who died on 10th December 2005. Therefore, the suit herein is an abuse of the court process as it has been filed to defeat the Respondents’ application dated 14th June 2017 pending at Kiambu High Court for removal of cautions registered against the 5 titles by the Plaintiff/Applicant. Further the Plaintiff/Applicant has filed a Notice of Appeal to appeal against Ruling delivered on 20th January 2017 and therefore this suit is an abuse of the court process. The Respondents also averred that they have been advised by their advocate on record that the Plaintiff/Applicant has no cause of action against the Respondents as her Summons for Revocation of Grant was dismissed by the High Court. Therefore the Respondents urged the Court to dismiss the instant application and the entire suit with costs. The Respondents also filed a Notice of Preliminary Objection and urged the Court to dismiss the entire suit as filed by the Plaintiff on 31st July 2017 on grounds that:

1) The suit is Resjudicata as the issues raised herein were adjudicated upon by a court of competent jurisdiction in Kiambu HC Succession No.20 of 2017 In the Matter of the Estate of Muthoni Mbua Wangaruro (deceased).

2) That the suit is statutory time barred under the Limitation of Actions Act Cap 22 Laws of Kenya as the cause of action arose from 1974/1975 when Muthoni Mbua Wangururo (deceased) was registered as the absolute owner of the suit property.

3) That the suit is an abuse of the court process and there is no cause of action against the Defendant/Respondent herein after the Plaintiff’s Summons for Revocaton of Grant was dismissed on 20th January 2017.

The Court directed that the Defendants’\Respondents’Notice of Preliminary Objection and the Plaintiff’s\Applicant’s Notice of Motion dated 31st July 2017 be canvassed together by way of written submissions.

The parties herein complied with the said directions. The Law Firm of Gitau H. Mwaura for the Defendant/Respondent filed their written submissions on 24th November 2017 and urged the Court to allow their Notice of Preliminary Objection and dismiss the Plaintiff’s entire suit on their stated grounds.

On behalf of the Plaintiff/Applicant, the Law Firm of J. Makumi Advocates filed their submissions on 20th November 2017 and urged the Court to dismiss the Defendants Notice of Preliminary Objection as the suit is neither Resjudicata nor statutory time barred by Limitation of Actions Act as alleged by the Defendants. The Plaintiff also urged the Court to allow her Notice of Motion dated 31st July 2017.

This Court has now carefully considered the entire pleadings, the annextures thereto and the relevant provisions of law. The Court has also carefully read and considered the rival written submissions and the cited authorities and render itself as follow:

There are two issued for determination;

1) The Notice of Preliminary Objection dated 28th August 2017.

2) Notice of Motion application by the Plaintiff dated 31st July 2017.

The Court will first determine the Notice of Preliminary Objection for the reasons that a Preliminary Objection has capability of bringing a matter to an end preliminarily, such that if the said Notice of Preliminary Objection is upheld, then the entire suit herein will be struck out thus bringing it to an end at the preliminary stage. See the case of Quick Enterprises Ltd…Vs…Kenya Railways Corporation. Kisumu High Court, Civil Case No.22 of 1999, where the Court held that:-

“when Preliminary Points are raised, they should be capable of disposing the matter preliminarily without the Court having to resort to ascertaining the facts from elsewhere apart from looking at the pleadings”.

Black’s Law Dictionary 9th Edition describes Preliminary Objection as‘an objection that if upheld would render further procedings before the tribunal impossible or unnecessary’.

Before the Court delves into the merit of this Preliminary Objection, it has to determine whether what has been raised by the Defendant/ Objector herein amounts to a Preliminary Objection as laid out in the case of Mukisa Biscuit Manufacturing Ltd…Vs…West End Distributors Ltd (1969) EA 697, where the Court held that:-

“A Preliminary Objection is in the nature of what used to be called demurrer. It raises pure point of law, which is argued on the assumption that all the facts pleaded are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of Preliminary Objection does nothing but unnecessarily increase costs and on occasion confuse issues”.

From the above quoted decision, it is clear that a Preliminary Objection should raise pure points of law and it cannot be raised if any facts have to be ascertained. The Preliminary Objection should also be capable of bringing the matter to an end at the Preliminary stage.

The Defendant/Objector has alleged that the suit herein is Resjudicata and also barred by Limitation of Actions Act. There are pure points of law and if upheld they have the probability of bringing the suit to a halt. Therefore the Court finds that the Defendant’s objection fits into the description of what a Preliminary Objection is as stated in the Mukisa Biscuits case (supra). Is the Preliminary Objection merited?

The Defendant/Objector has submitted that the suit herein is Resjudicata since the Plaintiff’s claims to beneficial interest based on trust over the suit properties herein was decided by the court vide a Ruling delivered on 20th January 2017 by J. Musyoka. She further alleged that there was no competent Appeal filed within the required time. Indeed, it is correct that the Plaintiff herein had filed Summons for Revocation of Grant inSuccession Cause No.452 of 2012 now Kiambu Succession Cause No.20 of 2017. She had claimed beneficial interest based on trust over the suit properties herein. However, her claim was later dismissed by the court. However, the court has seen the Ruling delivered on 30th November 2017 whereby the Plaintiff was granted leave to appeal out of time against the Ruling delivered on 20th January 2017. Therefore, the issue of whether the Succession Cause had jurisdiction to deal with the issue of trust will be a subject of the stated Appeal. Though the suit is not Resjudicata the isues raised herein are issues that will be canvassed in the intended Appeal. Allowing this suit to proceed won’t mean having two parallel proceedings over the issue of trust. The Court finds that since the Plaintiff has never been granted leave to Appeal, she should pursue the appeal to its logical conclusion as it deals with the same subject properties and the same parties.

Though the Court finds the suit not Resjudicata, the Court finds that the suit falls under the purview of Section 6 of the Civil Procedure Act which states:-

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”

Therefore the Court will have no option but to stay this suit until the intended Appeal by the Plaintiff is heard and determination.

On whether the suit is time barred by Limitation of Actions Act and thus time barred, the Court finds that the Plaintiff’s claim is based on trust and so the suit is not time barred. Section 20(1)of theLimitation of

Actions Act provide:-

None of the periods of limitation prescribed by this Act apply to an action by a beneficiary under a trust, which is an action –

(a) in respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy; or

(b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee or previously received by the trustee and converted to his use.

See the case of Macharia Kihari…..Vs…Ngigi Kihari, C.A.Civil Appeal No.170 of 1993, where the Court held:

“Limitation period prescribed in Section 2092) of the Limitation of Actions Act will not apply to a trust coming into existence under customary law. Under customary law, the land even after the right of action has accrued, is held in trust even for decades before any step is contemplated for a formal transfer or division. Limitation does not apply in customary law”.

Therefore this Court finds that the suit herein is not Statutory time barred or caught by Section 7 of the Limitation of Actions Act which provides:-

“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

Having carefully considered the arguments for and against the instant Preliminary Objection the Court finds it not merited and it is dismissed entirely with no orders as to costs.

However, as provided by Section 6 of the Civil Procedure Act, the Court will stay this suit until the intended Appeal is heard and determined.

Having stayed the suit, this Court finds no reason to determine the merit of the Notice of Motion dated 31st July 2017. Furthermore, it is not in doubt that the Plaintiff/Applicant has lodged cautions over the suit properties and the Administrators application dated 14th June 2017 to have the said cautions removed was declined.

Consequently, the Court’s final orders are that the Defendant’s Preliminary Objection is dismissed with no orders as to costs and further, this suit is stayed until the intended Appeal by the Plaintiff herein at the Court of Appeal is heard and determined.

It is so ordered.

Dated, Signed and Delivered at Thikathis 19thday of October 2018.

L. GACHERU

JUDGE

In the presence of

M/S Karwitha holding brief for Mr. Makumi for the Plaintiff

Mr. Gitau for Respondents

Lucy - Court clerk.

Court – Ruling read in open court.

L. GACHERU

JUDGE

19/10/2018