REPUBLIC OF KENYA

IN THE  ENVIRONMENT AND LAND COURT AT MAKUENI

ELC NO. 115 OF 2017

MUNYIVA  MUNYAO.....................................................................1^ST PLAINTIFF

MUSYOKA  MUNYAO...................................................................2^ND PLAINTIFF

MUTIE MUNYAO(suing  as Personal  Representatives                                             

of the  Estate  if Munyao  Munandu –Deceased)............................3^RD PLAINTIFF

VERSUS

PRISILA MUNYIVA MATUVA (Personal representative                                       

of  the estate  of Philip Matuva  Kivuvo – Deceased)..........................DEFENDANT

RULING

1) What  is before court  for ruling is the Defendant’s/Respondent’s  points of preliminary objection dated   3^rd  February, 2011 and filed in court on 7^th February, 2018 wherein  the Defendant has stated that:-

1. The originating summons cannot stand since the first issue can only be replied or answered to by the   Deceased  Ndeti Munandu and the proceedings are a nullity and the originating summons should be dismissed with costs. 

2. The Applicants are not the Personal Representative of the Estate of the late Ndeti  Munandu and are only Personal Representative of  the Estate of Munyao Mumandu and cannot answer the first issue  of the originating summons.

3. The Applicants cannot move the court to answer questions 2 and 3 of the originating summons since the major  issue relate to the Estate of the Late  Ndeti  Munandu.

4. The declaration order sought is for plot no. 408 which does not exist and the parcel of land know as Mbooni/Liani/1078 and   1080 having nothing to do with the Defendant and so is parcels of land known as Mbooni/Liani/1058 having nothing to do with the Defendant and does not exist.

5. The Deceased Ndeti Munandu’s Estate or Personal Representative have not been made a party to the  originating summon and the same should be dismissed with costs.

6. The Defendant is not a trustee at all for any of the Plaintiffs and cannot be ordered  to be a trustee of the parcels of land and from the abstract of the Title  attached  t the originating  summon, there is nothing  like a trust  of whatever name.

7. The Defendant states  that the Plaintiffs are on their father’s land 1080 which is in the name of the Ndeiti Munandu  and have never  been on the parcels of land  known as Mbooni/Liani/1079 and  1057 at all.

2) By the time of writing this  ruling, it is only the Defendant/Respondent who  had filed her submissions.  The  Defendant’s counsel  combined  issues number  1  and  2  of the Defendant’s/Respondent’s points of   preliminary objection and submitted that the Originating Summons cannot stand since it relates to orders to be  made against Ndeti Manandu who is  now deceased, and yet  he has not been made a party in this suit neither is his personal representatives nor his estate parties thus making  the Originating Summons defective.

3) The counsel  went on to submit that   the omission of the estate or the personal representatives  of Ndeti Manandu (deceased) in the  pleadings  offends the mandatory  provisions of Orders 1 and 2 of the Civil Procedure Rules  which  deal with parties to suits and pleadings  generally. The counsel  pointed out that the non- joinder of the deceased’s estate or his personal representatives  has the effect that the first question   raised  in the  Originating  Summons cannot be conveniently, effectively  and completely tried and determined by the  court as this issue can only be answered  or defended  by Ndeti Manandu (deceased) or his personal  representatives and not the Defendant/Respondent   herein  as he is merely a buyer and not privy to the parcel’s history or its  origin nor can it be answered by the Plaintiffs/Applicants  herein as they have an interest in the same and are not in a position to satisfactorily lead this court in determining  the question as it will culminate into an exparte hearing.

4) The Defendant’s counsel  cited Precedents of Pleadings 12^th Edition (1975), PP 159 – 160 by I.H Jacob, Sweet and Maxwel which provides as follows:-

“… the overriding  principle governing   parties  to an action may be stated to be that all necessary  and proper parties, but no others, should be before the court, so as to ensure  that all matters in dispute in the proceedings  may be effectively and completely determined  and adjudicated upon.”

5) He also  cited Order 2 rule 15(1) of the  Civil Procedure Rules, 2010 which provides that:-

“ At any stage  of the proceedings the court may order to be struck out or amended any pleading  on the ground that;

a) “

b) “

c) “

d) It  may prejudice, embrarrass  or delay the fair trial of the action; or

e) “ and may order the suit to be stayed or dismissed  or judgment to be  entered  accordingly, as the case may be”

6) He further  cited  Rule 15(3)  of the  same  Order  which provides that:-

“So far as applicable this rule shall apply to an Originating  Summons and a petition”

7) The counsel submitted that the second  issue raised in the  Originating  Summons that the Defendant/Respondent holds the land in question in trust for the Plaintiffs/Applicants is farfetched  and untrue. The counsel added that from the record, it is quite clear that the Defendant/Respondent is the lawful registered  absolute  proprietor of  parcels no Mbooni/Iiani /1079 and Mbooni/Iiani/1057 and the Plaintiffs are busy  bodies  who have no claim known in law. The counsel further   submitted that although it is true that section  26 of the  Land Registration Act and the repeated  Registered Land Act recognize the fact that land could  be registered  in the name of an individual in trust for family members, a basis  must be laid  in court  to enable  it make such a finding.  The counsel cited  the case of Christopher Iddi Moto & 15 Others Vs Chiriba Nyambu  Baru & Another[2014] eKLR  where O.A Angote, J while  dismissing the Plaintiffs’ suit  held that :-

“ … it is inconceivable that it is the sons of the deceased who would complain that the suit properties belonged to their  father when their father never filed any dispute is constructive proof that they knew  they had no interest in the suit property.”

8) Regarding the third issue on the Originating Summons that seeks  for  a declaration   that  the Plaintiffs are owners of parcels number Mbooni/Iiani/1079 and Mbooni/Iiani/1057 by virtue of adverse possession, the  Defendant’s/Respondent’s  counsel submitted that the law provides, that one must be in possession of the land claimed or  to have  used it adversely to the proprietor’s  rights.  The counsel further submitted that in this case, the Applicants/Plaintiffs live   the greater parcels  number  Mbooni/Iiani/408  which no longer  exists after subdivision and not on the particular  parcels owned by the  parcels owned by the Defendant/Respondent.

9) The counsel further submitted that the Plaintiffs/Applicants have not discharged the burden of specifically identifying the portions they have been in physical possession of as they only claim to have been living  in the original Mbooni/Iiani/408 which does not exist. The counsel cited the case of Githu Vs Ndele(1984) KLR 776 while the court observed that:-

“… the Appellants did not discharge the burden of specifically identifying or even describing the portions, sizes and locations of those in their respective possession from the larger  suit that they want decreed to them”

10) The counsel urged the court to uphold the Defendant/Respondent preliminary objection and strike off the Originating Summons with costs.

11) I have carefully read the Originating Summons together with its supporting affidavit as well as the Defendant/Respondent’s  point of preliminary objection.  I do agree with the Defendant/Respondent’s  counsel that the  first issue or question raised in the Originating Summons can only  be answered  by Ndeti  Manandu (deceased) or his  personal representatives  and not  the Plaintiffs/Applicants. I further  agree with the Defendant’s/Respondent’s  counsel that  non joinder of the  deceased’s estate  or his  personal  representatives in this Originating Summons  has the effect   that  the aforementioned  question cannot be conveniently, effectively and completely  tried by this court.

12) I also agree with the Defendant’s/Respondent’s counsel that the assertion by the Plaintiffs/Applicants that the Defendant/Respondent holds the suit land in trust for them is farfetched.

13) I further agree that the issue of adverse possession cannot  hold either  since the applicants have not shown that they reside in land parcels Mbooni/Iiani /1079 and Mbooni/Iiani/1057 in a manner that can be  said that they have dispossessed the  Defendant/Respondent of it.

14) The  upshot  of the foregoing  is that the Preliminary Objection  has merits and I hereby proceed to  strike  out the Originating Summons with costs to the Defendant/Respondent. It is so ordered.

SIGNED, DATED AND DELIVERED AT MAKUENI THIS 19^TH DAY OF DECEMBER, 2018.

MBOGO C.G,

JUDGE

IN THE  PRESENCE OF;

Ms Watta holding brief for Mr.  Manthi Masika for the Defendant

No appearance for the Plaintiff

Mr.Kwemboi Court Assistant.

MBOGO C.G, JUDGE

19/12/2018