[2022] KEHC 14511 (KLR)

Sagalla Ranchers Limited v Mwadilo & another (Civil Suit 1 of 2018) [2022] KEHC 14511 (KLR) (11 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14511 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Suit 1 of 2018

JN Onyiego, J

October 11, 2022

Between

Sagalla Ranchers Limited

Plaintiff

and

Wilmot Mwadilo

1st Respondent

Patrick Mbinga

2nd Respondent

Ruling

1. This suit originally was filed at Mombasa high court as civil suit No 86 of 2014. Upon creation of Voi high court, it was transferred to Voi high court and given civil suit No 1 of 2018. Vide a plaint dated June 27, 2014, the plaintiff herein sued the defendants its former directors accusing them of fraudulently and without its consent or authority leasing and subsequently selling its property otherwise known as LR12177/4 to Izera Enterprizes. They therefore prayed for the following reliefs;a.A declaratory order do issue revoking the signatures and to nullify the instrument of transfer of lease and all other transactions therefrom and Land reference No 12177/4 to revert to the plaintiffb.An order to indemnify the plaintiff against third party claims.c.Cost of the suitd.Interest on (c) and(d)e.Any other relief that the honourable court may deem fit or just to grant.

2. During the pendency of the suit, the plaintiff moved the court vide a notice of motion dated October 8, 2021 pursuant to Sections 1A, 1B, and 3A of the CPAand order 5 rules 3 &5, order 1 rules 9 & 10 and order 51 of the CPRS seeking to amend the plaint herein so as to include Izera Enteprizes and Gitonga Wambugu Kariuki as the 3rd and 4th defendants respectively. The proposed intended defendants were accused of participating in the fraudulent act of transferring the subject property to themselves hence liable to that extent.

3. The application is supported by an affidavit sworn by Raphael Lewela Mbinga a director with the plaintiff company who averred that; in order to determine conclusively the subject matter, it would be prudent to enjoin the intended defendants as they were beneficiaries of the a foresaid fraudulent land transaction; the plaint as filed has a lot of inconsistencies which can only be clarified on amendment; the issues at play are matters to do with land that this honourable court cannot legitimately be deemed to have capacity to handle in law; the amendment is not prejudicial to the defendants and; the intended amendment does not introduce any new issues.

4. In response, the defendants opposed the application by filing a preliminary objection dated December 19, 2021 thus stating that;a.This honourable court lacks jurisdiction to hear and determine the suit as made out in the plaint as originally drawn and/ or with the intended amendments since as provided under Article 162(2) of the Constitution of Kenya 2010, and Section 13 of the Environment and Land Court Act 2011, the matters for determination fall exclusively under the jurisdiction of the environment and Land Court.b.Alternatively, And Without Prejudice to paragraph 1 herein above, the matters raised in this suit are resjudicata being the same matters that were raised in Mombasa ELC No 210 of 2013 and Mombasa ELC No 175 o f2014c.Until and unless the plaintiff is granted leave to join any other parties to this suit, the plaintiff is estopped from referring to strangers to this suit as defendants. The titles to the application and the plaintiff’s list of documents dated December 3, 2021, therefore, technically refer to different proceedings and/ or are misleading and defectived.The intended amendment to the plaint introduces a completely new cause of action.e.The claims and reliefs sought against the intended new parties have been caught by the statute of limitation

5. Besides the PO, the defendants/ respondents filed a replying affidavit sworn on October 17, 2021 by Wilmot Mwadilo the 1st respondent herein stating that; the intended amendment has introduced totally anew claim; two similar suits being ELC Nos 210 of 2013 and 175 of 2014 all raising similar issues as raised in this suit have been determined by competent courts and; that this court has no jurisdiction to determine a dispute touching on a land matter.

6. When the matter came up for directions, parties agreed to file submissions to dispose the application and the Preliminary objection.

7. Consequently, the plaintiff through the law firm of KKOA Advocates LLP filed their submissions dated March 15, 2022 on March 22, 2022. Mr Kurgat appearing for the plaintiff/applicant submitted on three issues namely; whether the suit should be struck out; whether the defendants’ notices of preliminary objection are merited and; who should pay the costs to this application.

8. On the aspect of striking out the suit, Mr Kurgat submitted that such act is a draconian measure that should only be exercised sparingly and only where there is no other remedy. That this court has the discretion to allow the amendment as there is no proof that; the suit does not disclose any reasonable cause of action, it is frivolous, scandalous or amounts to an abuse of the court process pursuant to order 2 rule 15 of the CPRS. To support this position, the court was referred to the case of Kivanga Estates Limited v National Bank of Kenya Limited (2017) e KLR where the court cautioned that striking pleadings out is a draconian measure and applicable only sparingly if the court in exercise of its discretion is satisfied that any of the grounds set out under order 2 rule 15 of the CPRShas been satisfied.

9. On the question whether the suit is resjudicata, counsel submitted that the respondents have failed to satisfy the requirements under section 7 of the CPRS. That there was no proof that there has been a similar suit raising similar issues between same parties and with finality determined before a competent court with jurisdiction. To buttress that position, reliance was placed in the holding in the case of Accredo AG & 3 others v Steffano Uccelli & another(2019) e KLR where the court emphasized on the need for a party to prove the elements under Section 7 of the CPRSbefore pleading the doctrine of resjudicata. According to mr. Kurgat, there has never been another application filed for leave to amend the plaint hence the doctrine of resjudicata is not applicable.

10. Learned counsel opined that the only appealing remedy available to the court in-case it found that it had no jurisdiction is to transfer the suit to the ELC as a court with competent jurisdiction but not to dismiss. To galvanise that proposition, the court was referred to the case of Republic v Karisa Chengo & 2 others (2017) e KLR. In counsel’s view, the court should exhaust the available remedies in the spirit of the doctrine of exhaustion.

11. It was further contended that the Preliminary objection herein is an afterthought as the defendants have all along participated in these proceedings by filing several pleadings and submissions without raising a finger on jurisdiction. In his opinion, it is too late to raise it now hence inordinate delay which is not excusable and therefore an act of bad faith and malice.

12. On their part, the defendants filed their submissions on 19TH January 2021 and May 23, 2021 through the firm of Gikandi and company advocates. Mr Gikandi reiterated the content contained in the particulars of the replying affidavit and the attendant preliminary objection thereof. Learned counsel submitted that this court has no jurisdiction to determine an issue relating to a dispute over land which is a preserve of the ELC pursuant to Article 162(2) of the Constitution. According to counsel, once this court finds that it has no jurisdiction, it is bound to down its tools and move no further step. To advance this position, counsel referred to the celebrated and famous case of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) limited (1989) e KLR and phoenix of EA assurance Company Limited v SM Thiga T/A Newspaper service(2019) e KLR.

13. Mr Gikandi submitted that this court has no powers to transfer a suit to which it has no jurisdiction. That the only remedy the plaintiff had was to withdraw the suit but they did not do so 9yrs down the line hence inordinate delay in even seeking an amendment. Counsel submitted that where there is no explanation or excuse for the delay, the court cannot exercise discretion in favour of the applicant. In emphasizing that position, the court was referred to the holding in the case of Utalii Transport Limited & three others v NIC Bank Limited & Another(2014) e KLR.

14. This court’s attention was drawn to the affidavit sworn by Raphael in support of the notice of motion herein in which he averred that he was deponing as director to the plaintiff company a fact the defendants disputed by submitting that it was not correct as there was no company resolution made and attached to the application to prove such authorization. According to Mr. Gikandi, the notice of motion and the affidavit in support are incompetent the same having been made and sworn by an unauthorized person. In this regard, the court was referred to the holding in the case ofEast African Portland Cement Company LTD v Capital Markets Authority & 4 others (2014) e KLR.

Determination 15. I have considered the application herein, preliminary objection and parties’ respective submissions. Issues that emanate for determination are;a.Whether the preliminary objection is meritedb.Whether the suit herein is resjudicatac.Whether the plaintiff/applicant has met the requirements for amendment of the plaintd.Who should bear costs

16. There is no dispute that the central issue in the suit herein is land which was allegedly sold by the defendants then the plaintiff’s directors without the plaintiff’s knowledge. The critical question therefore which is the subject of the preliminary Objection herein is; whether this court has jurisdiction to determine the issues in controversy and if not, whether it can transfer the suit to a competent court with jurisdiction or simply strike out the suit.

17. It is trite law that a preliminary objection must be based on a point of law which if positively proved would dispose of the matter with finality. See Agnes Mukami and 5 others v Ngewahi and Companny(2005) e KLR where the court held that ;‘’...A clear and well taken preliminary objection may expedite disposal of matters before a court. On the other hand, a vague preliminary objection often causes delay in determination of matters”

18. In the celebrated case of Mukisa Biscuit Manufacturing Co Ltd v West End DistributorsLtd(1969) EA 696 Newbold p JA had this to say;“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side 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 points by way of preliminary objection does nothing but unnecessarily increase costs and, or occasion, confuse the issues. This improper practice should stop.”

19. The question of lack of jurisdiction is a legal issue hence a point law which if positively determined can dispose of the matter with finality. It therefore follows that once a court discovers that it lacks jurisdiction, the noble thing to do is to down its tools and move no further step. This was the wisdom derived from Nyarangi JA in the famous case of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited(supra).

20. There is no doubt that jurisdiction is a creature of either the constitution or statute and that a court can not purport to arrogate itself jurisdiction through judicial craftsmanship or innovation where there is none. See Samuel Kamau Macharia & another v Kenya Commmercial Bank Limited & 2 others(2012) e KLR. Equally, in Republic v Karisa Chengo and 2 others (supra) where the Supreme Court held that jurisdiction goes to the root of any litigation and that lack of it renders a court’s decision void as opposed to it being merely rendered voidable.

21. It is apparent that the issue of lack of jurisdiction cannot be equated to grounds for striking out suits under Order 2 rule 15 of the CPRSwhere a court reserves the discretion to allow parties an opportunity to prove their case. I do agree with Mr. Kurgat that under order 2 rule 15 of the CPRS, a court should be cautious and indeed slow at striking out pleadings on account of not disclosing a reasonable cause of action or for being scandalous, frivolous or amounting to an abuse of the court process. This provision has no room where the question of jurisdiction is at stake hence nothing to spare for hearing on merit.

22. From the pleadings and submissions, both parties are in agreement that the court with jurisdiction to entertain the matter herein is the ELC pursuant to Article 162(2) of the constitution. However, the point of departure is whether this court can transfer this matter to the ELC court or simply strike it out. In the case of Peter Gichuki Kinga’ra v Independent Electoral and boundaries commission & 2 others (2013) e KLR the court observed as follows;“It is our considered view that passage or lapse of time does not and cannot confer jurisdiction; jurisdiction is a continuum. Jurisdiction cannot lack today and by passage or lapse of time exist tomorrow. Jurisdiction is either present abnitio or absent forever”

23. In Phoenix of EA Assurance Company limited v SM Thiga t/a Thiga t/a Newspaper Services(supra) the court of appeal had this to say’;“Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction the court cannot confer jurisdiction to itself”

24. In the case of Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel (2016) e KLR it was held that;“in numerous decided cases, including this court have held 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 a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow a court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign…”

25. Based on the wisdom drawn from the above cited case law, and having held that this court has no jurisdiction hence should down its tools, I have no residual powers to enable me transfer this matter to ELC. The situation however would have been different had the two courts shared concurrent jurisdiction with ELC’S jurisdiction being predominant. Equally, if ELC were a division within the high court, then, this court would have exercised its jurisdiction to transfer the suit for hearing before the relevant division within the same high court.

26. In the circumstances of this case, this court’s hands are tied. The argument by Mr kurgat that the preliminary objection was raised a bit too late is not sustainable. My answer would be that there is no time limitation in raising a preliminary objection as the law permits the same to be raised at any stage of the proceedings. In this case, hearing has not commenced hence not time barred.

27. Having held above that this court has no jurisdiction, I have no capacity to determine on the merits of the notice of motion seeking to amend the plaint. In the same vein, I cannot make a determination on whether the suit is resjudicata or not.

28. The only remedy the applicant/ plaintiff had but failed to exercise at the right time was to withdraw the suit. Unfortunately, the remedy of transfer of the suit is equally not available. This is because, once this court’s potency is spent, no amount of resuscitation can cure it. Lack of jurisdiction can be equated to an impotent man who has no power to sire or a gun with no bullet to fire.

29. Accordingly, it is my finding that the preliminary objection raised herein is merited and the same is therefore upheld with the resultant inevitable conclusion that the suit is hereby struck out for lack of jurisdiction. On costs, the law is clear that the same should follow the event unless there are good reasons not to award. To that extent, I have no reason not to award costs. Therefore, the plaintiff shall bear the costs of the suit.

Dated, signed and delivered virtually at Mombasa this 11thday of October 2022J. N. ONYIEGOJUDGEPage 4 of 4