[2023] KEELC 18304 (KLR)

Wanje & another v Mombasa & another (Environment & Land Case 226 of 2021) [2023] KEELC 18304 (KLR) (26 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18304 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 226 of 2021

SM Kibunja, J

June 26, 2023

Between

Juma Mohamed Wanje

1st Plaintiff

Hauser Patrick Georg

2nd Plaintiff

and

Land Registrar, Mombasa

1st Defendant

Isaac Njuguna Njoroge

2nd Defendant

Ruling

1. Hauser Patrick Georg, the applicant, moved the court through the notice of motion dated the June 21, 2022, brought under Orders 2 Rule 15, 13 Rule 2, 51 Rule 1 of Civil Procedure Rules and section 3A of Civil Procedure Act, through Ms. Murimi, Nduma, Mbago & Muchela Advocates, seeking for “judgement on admission and/or in the alternative enter summary judgement and adjudge that the applicant is the bona fide/legitimate owner/proprietor of land parcel number 10076/11/MN (original 3631/6 and 10078/11/MN (original 3631/8).” The application is premised on the eight (8) grounds on its face and supported by the undated affidavit sworn by Margrit Sommer Charo, the donee of power of attorney by the 2nd plaintiff. The applicant’s case is that the applicant had previously filed Mombasa ELC No. 172 of 2011 against the 2nd respondent over ownership of land parcels numbers 10074/11/MN, 10077/11/MN and 10079/11/MN in which the 2nd respondent “filed a statement of defence admitting having acquired the parcels of land in issue in the instant suit viz subdivision numbers 10076/11MN (Original 3631/6) & 10078/11. MN (Original Number 3631/8) on behalf of the 2nd plaintiff.” That in December 2017, the applicant got to know that a transfer had been registered without his approval on the “mother title viz subdivision number 10152 (Original No. 3631/8)11/MN & 10150 (Original No. 3631/8)11/MN in favour of the 2nd defendant, purporting to duplicate the title of the parcels of land viz sub-numbers 10076/11MN (Original 3631/6) & 10078/MN (Original Number 3631/8) registered in the name of 2nd plaintiff.” That in view of the foregoing admission by the 2nd respondent acknowledging that the applicant/2nd plaintiff was the bonafide owner of the parcels numbers 10076 (original No. 3631/6) 11/MN & 10078 (original No. 3631/8)11/MN, he is legally estopped from contesting ownership by the applicant as he had admitted the same in the previous pleadings.

2. The application is opposed by the 1st respondent through the replying affidavit of Paul Waga, an advocate in the Attorney General’s office Mombasa. It is the 1st respondent’s case that they were not parties to Mombasa ELC No. 172 of 2011. That the applicant has not availed the decision of the court in that suit and there is nothing that can be said to be binding to the parties in this suit. That the 1st respondent is yet to be served with the plaint in this suit and that this being a claim over ownership of land, the dispute should be determined through trial and not interlocutory application.

3. The application is also opposed by the 2nd respondent through the replying affidavit sworn by Isaac Juma Njoroge, on the September 14, 2022. It is the 2nd respondent’s case that the suit whose pleadings the applicant is relying on was dismissed on the November 5, 2018 as demonstrated in his notice of preliminary objection dated the May 12, 2022. That the application does not meet the threshold for the grant of the reliefs sought. That subdivisions Nos. 10150/11/MN and 10152/11/MN are registered in his name. That the “purported subdivisions 10076/11/MN and 10078/111/MN were cancelled and respective map amended,” and were never in his name. that the application dated the June 21, 2021 is an abuse of the court process and should be dismissed with costs.

4. The learned counsel for the applicant and 2nd respondent filed their submissions dated the July 26, 2022 and January 13, 2023 respectively which the court has considered.

5. The following are the issues for the court’s determinations;a.Whether the applicant has established admission of his claim by the 2nd respondent.b.Who pays the costs in the application.

6. The court has considered the grounds on the notice of motion, affidavit evidence by the three parties as summarized above, submissions by the two learned counsel, superior courts decisions cited thereon and come to the following conclusions;a.That it is apparent from the plain reading of grounds (d) to (h) of the notice of motion and paragraphs (6), (7) and (10) of the supporting affidavit that the pleadings the applicant contends amount to admission of his claim by the 2nd respondent was that filed in Mombasa ELC No. 172 of 2011 and not this instant suit. The annexed plaint filed in Mombasa ELC No.172 of 2011 indicates the parties were Hauser Patrick George and Isaac Njuguna Njoroge as the plaintiff and defendant respectively. The prayers in that suit were permanent injunction and declaratory orders in respect of subdivision No. 10074 (original No.3631/4) section 11 MN, 10077 (original No.3631/7) section 11 MN and 10079 (original No. 3631/9) section 11 MN, costs and interests. The only unequivocal admission on the annexed statement of defence, is at paragraphs (4) and (5) that are reproduced verbatim here below;“4. The defendant did acquire for the plaintiff one acre comprising of plots numbers subdivision 10076 (original 3631) section 11/MN and subdivision No. 10078 (original No. 3631/8) as per instructions and request.5. That the defendant acknowledges receipt of Kshs. 6000,000/-= only in two instalments from the plaintiff and the alleged power of attorney.”In the instant suit commenced through the plaint dated the November 5, 2021, it has two plaintiffs and two defendants. Juma Mohamed Wanje and Land Registrar, Mombasa, the 1st plaintiff and 1st defendant respectively herein were not parties in the previous suit Number 172 of 2011. Prayer (a) in this instant suit is for summary judgement that the applicant is the bona fide owner of land parcel number 10076 (original No. 3631/6)11/MN and 10078/11/MN. In his statement of defence dated the December 20, 2021, the 2nd respondent/defendant at paragraphs 5 to 12 and the prayer denies the plaintiffs’ claim and puts them to strict proof. He also disputes this court’s jurisdiction and followed that with the notice of preliminary objection dated the May 12, 2022 on the grounds of res judicata in view of HCCC No. 172 of 2011 that was dismissed on the November 5, 2018. b.That the foregoing show that though the 2nd respondent appear to have partly admitted the applicant’s claim in Mombasa ELC No. 172 of 2011 that was reportedly determined through the dismissal order of 5th November 2018, there is no doubt that he has clearly denied the plaintiffs’ claim in the instant suit. The applicant urges the court to find that the 2nd respondent is estopped from denying or disputing the applicant’s ownership of said land parcels, while the 2nd respondent contends that the parcels the applicant claim for have since been cancelled. The 1st respondent has pointed out that it was not a party in the previous proceedings, has not been served with the plaint in the instant suit and the dispute over the ownership of the said parcels of land should be determined through trial.c.That in view of the fact that the instant suit has other parties who were not involved in Mombasa ELC No. 172 of 2011, 1st respondent is yet to be served with the plaint and file their defence, and the fact that the decision in Mombasa ELC No. 172 of 2011 has not been availed to the court and the apparent rebuttal by the 2nd respondent to the applicant’s claim herein, the court has doubts as to whether the 2nd respondent’s averments in the previous suit estops him from defending the plaintiffs’ claim in the instant suit. This is a suit that should be allowed to go to full hearing after the 1st respondent has been served with the plaint to enable them file their defence. The pending preliminary objection by the 2nd respondent also needs to be heard and determined without undue delay.d.Though the notice of motion is without merit, the justice of the case commends that the costs will be in the cause, the provision of section 27 of Civil Procedure Act chapter 21 of Laws of Kenya notwithstanding.

1. Flowing from above, the court finds and orders as follows;a.The applicant’s/2nd plaintiff’s notice of motion dated the June 21, 2022 is without merit and is hereby dismissed.b.The costs be in the cause.Orders accordingly.

DATED AND VIRTUALLY DELIVERED THIS 26th DAY OF JUNE 2023. S. M. Kibunja, J.ELC MOMBASA.In the presence of;1st Plaintiff : AbsentApplicant : AbsentRespondents : AbsentCounsel : Mr. Gitonga for Waithera for 2nd Defendant.Wilson – Court AssistantS. M. Kibunja, J.ELC MOMBASA.