REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC CASE NUMBER E028 OF 2021

MBUKONI HOLDINGS LTD................................................ 1^ST PLAINTIFF

ALICE ANYANGO OKUMU..................................................2ND PLAINTIFF

ALBAN HUS OJIAMBO.........................................................3RD PLAINTIFF

JOHN MUSEMBI MUTALA..................................................4TH PLAINTIFF

MARK ARASA.........................................................................5TH PLAINTIFF

MICHAEL NJAMA KAMAU.................................................6TH PLAINTIFF

SELINA NDUNGWA ISEVA….............................................. 7TH PLAINTIFF

ERICK MURIITHI GATHUMBI...........................................8TH PLAINTIFF

JENIFFER WAMBUI...............................................................9TH PLAINTIFF

SAMUEL MUNYIRI MUKWA.............................................10TH PLAINTIFF

DAVIS NYAGAKA NYAMWANGE......................................11TH PLAINTIFF

EVANS MOSE..........................................................................12TH PLAINTIFF

ALFAYO ATIKA......................................................................13TH PLAINTIFF

BENJAMIN MAINGI..............................................................14TH PLAINTIFF

WINFRED AWORO OCHOLA.............................................15TH PLAINTIFF

PRISCILLA WAMAITHA MITHAMBO..............................16^TH PLAINTIFF

FRANKLIN M. NJINI.............................................................17TH PLAINTIFF

VERSUS

RACHAEL NTHENYA LUVITA............................................ 1ST DEFENDANT

JOHN MUNYAO MUINDI......................................................2ND DEFENDANT

MULIKA   MUINDI.................................................................3RD DEFENDANT

FLORENCE MUOTI KIOKO................................................4TH DEFENDANT

RULING

Introduction

1.  This Ruling is in relation to a Notice of Motion Application dated 26^th February, 2021, brought under Order 40 and 51 Rule 1 of the Civil Procedure Rules, Article 159 (2) (d) of the Constitution, Sections 1A, 1B, 3A and 63(c) (e) of the Civil Procedure Act. In the Application, the Plaintiffs are seeking for the following Orders:

a) The Defendants be restrained by themselves, servants, agents and/or employees from alienating, subdividing, transferring, leasing, charging, dealing in, transacting or in any manner disposing off the Suit property more particularly referred to as L.R No. MAVOKO TOWN BLOCK 3/2057 or the sub-divisions of the suit property by any form or in any way referred to pending the hearing and determination of this suit.

b) The Defendants by themselves, servants, agents and/or employees be restrained from placing beacons, pulling down fences, demolishing houses and other existing structures on the Suit Property more particularly known as L.R No. MAVOKO TOWN BLOCK 3/2057 or the sub-divisions of the Suit Property by any form or in any way referred to or trespassing on any part thereof pending the hearing and determination of this suit.

c)  The cost of this Application be borne by the Defendants.

2.  The application is supported by the Affidavit of the 1^st Plaintiff’s Director who deponed that the 1^st Plaintiff purchased property known as L.R No. MAVOKO TOWN BLOCK 3/2057 (hereinafter referred to as the “Suit Property”) from the 2^nd, 3^rd and 4^th Defendants as beneficial owners vide a Sale Agreement dated 13^th September, 2016.

3.  It is the deposition of the 1^st Plaintiff’s Director that at the time of entering into the Agreement of Sale between the 1^st Plaintiff and the 2^nd, 3^rd and 4^th Defendants, the registered proprietor of the suit property was Agnes Mbithe Muindi, the deceased mother of the 2^nd,3^rd and 4^th Defendants; that the 2^nd, 3^rd and 4^th Defendants handed over the original Title Deed for the suit property to the 1^st Defendant for eventual transfer upon completion and that the said Title Deed is still in the hands of the 1^st Defendant.

4.  It is the 1^st Plaintiff’s case that it paid to the 2^nd – 4^th Defendants the full purchase price for the suit property in the year 2010; that the Defendants handed to the Plaintiff the original Title Deed upon payment of the purchase price and that the Plaintiff instructed its advocates to prepare the transfer documents for registration.

5.  The 1^st Plaintiff’s Director deponed that the 1^st Defendant instructed him to assist the 2^nd to 4^th Defendants’ family to pursue a succession cause being  Nairobi High Court Succession No. 282 of 2007 in which the court granted Letters of Administration of the deceased’s estate to the 2^nd and 3^rd Defendants respectively;

6.  According to the Plaintiff, it subdivided the suit property and later sold the same to more than 200 people, including the Plaintiffs herein and that while knowing and participating in Nairobi High Court Succession Cause No. 282 of 2007, the 2^nd, 3^rd and 4^th Defendants, in conspiracy with the 1^st Defendant, fraudulently filed and obtained fresh Letters of Administration for the deceased’s estate which grant was confirmed on 7^th September, 2012.

7.  It was deponed that the 2^nd, 3^rd and 4^th Defendants fraudulently reported to Machakos Police station that the Original title of the suit property was lost and that the Defendants applied for a replacement of the title which was re-issued in the name of the 4^th Defendant who subsequently purported to sell and transfer the property to the 1^st Defendant.

8.  The 1^st Plaintiff’s Director deponed that the 1^st Defendant has since threatened to dispose of the suit property; that the Plaintiffs have learnt that the 1^st Defendant has fraudulently subdivided the suit property into several plots which he intends to sell to unsuspecting members of the public and that the 1^st Defendant has threatened to start demolishing residential houses belonging to the Plaintiffs and other property owners residing on the suit property.

9.   The 1^st Plaintiff’s Director deponed that the Plaintiffs have been in possession of the suit property for more than 10 years and have no other homes; that the Defendants have issued upon the Plaintiffs eviction notices and that it was just and equitable that the Plaintiffs be heard on a priority basis so that their grievances are heard without delay.

10.  According to the 1^st Plaintiff, it filed a suit being Machakos ELC No. 22 of 2017, formerly Nairobi ELC No. 225 of 2014 against the Defendants in which the Defendants were restrained from evicting the Plaintiffs; that in the course of the proceedings, the 1^st Defendant died; that the Application to substitute the 1^st Defendant was allowed on 30^th January, 2019 and that when the matter came up for hearing on 9^th April, 2019, their advocate informed the court that pretrial directions had not been taken in the matter.

11.  The 1^st Plaintiff’s Director deponed that the court declined to adjourn the matter and dismissed the suit for want of prosecution and attendance on the part of the Plaintiffs with costs; that there was no justification in dismissing the matter and that the decision of the court was whimsical, high handed and totally unreasonable.

12.  The 1^st Plaintiff has pleaded that the court declined to review its Ruling; that the Plaintiffs filed a Notice of Appeal against the Ruling of the court and that despite the court having dismissed the suit, the Plaintiffs are not barred from re-instituting the suit again.

13.  In response, the 1^st Defendant filed a Notice of Preliminary Objection together with a Replying Affidavit. In the Notice of Preliminary Objection dated 15^th March, 2021, the 1^st Defendant averred that this suit was fatally defective as the 1^st Plaintiff did not pass a resolution approving/ authorizing the institution of the suit and that there was no authority authorizing either their advocate on record to act on their behalf or the Deponent, Thomas Maingi Wambua, to swear Affidavits.

14.  In the Replying Affidavit, the 1^st Defendant deponed that she was the widow of the late Edwin Luvita Kavai; that she co-administers the deceased’s estate with her brother in law and that she was shocked that the Plaintiffs had sued her husband despite him being deceased.

15.  It is the 1^st Defendant’s case that the Plaintiff’s Application is misadvised, evasive, grossly incompetent and an abuse of the court process; that the Plaintiffs were guilty of gross abuse of the court process having filed numerous suits being Machakos CMCC No. 1035 of 2013 Mbukoni Holdings Limited & 16 Others v Edwin Luvita Kavai & 3 Others as well as Machakos ELC No. 22 of 2017, Mbukoni Holdings Limited & 16 Others v Racheal Nthenya Luvita & 3 others, which suits were dismissed.

16.  The 1^st Defendant deponed that following the dismissal of the Plaintiffs’ Application for review, they lodged a Notice of Appeal on 16/10/2019 which they purportedly withdrew on 26/02/2021; that the present suit was filed in response to the notices served upon some of the Plaintiffs and that the Application should be dismissed.

17.  The 2^nd, 3^rd and 4^th Defendants also filed their Replying Affidavit sworn by the 4^th Defendant who deponed that they never at any point entered into an agreement for sale with the 1^st Plaintiff regarding the sale of the suit property and that the agreement of sale being referred to by the Plaintiffs was a forgery as confirmed by the DCI’s report dated 13/06/2006.

18.  The 4^th Defendant deponed that they never received any monies from the 1^st Plaintiff as they had never transacted with them regarding the suit property or for any other purpose; that no grant was issued by the court in Nairobi Succession Cause No. 282 of 2007 as alleged by the 1^st Plaintiff; that their mother died way back in 1997 and that at the time of the alleged transaction with the 1^st Plaintiff, they had not obtained letters of administration.

19.  The 4^th Defendant deponed that the occupation of the suit land by the Plaintiffs is without any legal right; that the Plaintiffs are trespassers who should be evicted from the land by this Honourable court; that this suit is similar to Machakos ELC No. 22 of 2017 and that the issues raised herein have been determined by this court with finality.

20. The Plaintiffs, through the 1^st Plaintiff’s Director, filed a Further Affidavit dated 26.05.2021 in which he deponed that a resolution was passed by the 1^st Plaintiff appointing the firm of M/s Nyamweya & Mamboleo Advocates to act on behalf of the 1^st Plaintiff and that he had authority to swear the Affidavits on behalf of the 1^st Plaintiff. The parties’ advocates made oral submissions which I have considered. I have also considered the authorities which were tendered in court by counsel.

Analysis and Findings

21.  I have considered the Application and authorities cited. In my considered opinion, before considering if the Plaintiffs’ Application for injunction should be granted or not, I should determine if this court has jurisdiction to hear, not only the Application, but also the entire suit.

22.  It is not in dispute that the Plaintiffs sued the Defendants herein in Nairobi ELC No. 225 of 2014 which upon transfer to Machakos became Machakos ELC Case number 22 of 2017 over the suit property. Indeed, in his Affidavit, the 1^st Plaintiff’s Director stated as much. In the said suit, the Plaintiffs were granted an injunction on 25^th February, 2016 pending the hearing of the suit.

23.  When Machakos ELC Case number 22 of 2017 came up for hearing on 9^th April, 2019, the Plaintiffs’ counsel informed the court that the Plaintiffs need more time to file documents. The Defendants’ counsel opposed the Application for adjournment. The court declined to adjourn the matter and directed the Plaintiffs and their advocate to prosecute the Plaintiffs’ case.

24.  However, neither the Plaintiffs nor their advocate were ready to conduct their case. Indeed, there was no indication from the Plaintiffs’ advocate that all the Plaintiffs were in court on that day. It is on that basis that the court dismissed the Plaintiffs case for want of prosecution and attendance.

25.  The Plaintiffs have deponed that they did file an Application for the review of the Ruling of the court, which Application was dismissed by this court. Although the Plaintiffs lodged a Notice of Appeal challenging the Ruling of the court, the said Notice of Appeal was withdrawn, whereafter the Plaintiffs filed the present suit.

26.  Order 12 Rule 3 of the Civil Procedure Rules provides as follows:

(1)  If on the day fixed for hearing, after the suit has been called out for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.

(2)  If the defendant admits any part of the claim, the court shall give judgment against the defendant upon such admission and shall dismiss the suit so far as it relates to the remainder except for good cause to be recorded by the court.

(3)  If the defendant has counterclaimed, he may prove his counterclaim so far as the burden of proof lies on him.

27.  Order 12 Rule 6 of the Civil Procedure stipulates as follows:

(1)  Subject to sub rule (2) and to any law of limitation of actions, where a suit is dismissed under this Order the plaintiff may bring a fresh suit.

(2)  When a suit has been dismissed under rule 3 no fresh suit may be brought in respect of the same cause of action.

28. As stated in the preceding paragraphs, when this matter came up for hearing, the Defendants’ advocate informed the court that he was ready to defend the suit. However, the Plaintiffs were neither ready to prosecute the matter, nor was there any indication that the Plaintiffs were in court. This matter was dismissed not only for want of prosecution of the suit on the part of the Plaintiffs but also for want of attendance.

29.  The Court of Appeal has had occasion to consider the effect of an order dismissing a suit for want of prosecution and non-attendance. In the case of Njue Ngai vs Ephantus Njiru Ngai & another (2016) eKLR, the Court of Appeal held as follows:

“Now we have seen that a dismissal for want of prosecution was as good as a final judgment in the appeal unless a successful application for setting aside was filed…It is clear to us, as it was to the trial court, that the declaratory suit raised the same or substantially the same issues decided before the Appeals Committee and confirmed by the High Court in dismissing the appeal. The filing of it was in breach of section 7 of the Civil Procedure Act and a matter that satisfies the tests for the defence of res judicata as stated above.”

30.   In the case of Cooperative Bank of Kenya vs Cosmas Mrombo Moka and another (2019) eKLR, the Court of Appeal held as follows:

“As stated hereinbefore, this court has already addressed its mind as to whether a matter dismissed for want of prosecution could be resuscitated through a fresh suit and the categorical answer was that it could not as doing so would offend the doctrine of res judicata. Consequently, this matter being completely on all fours with the Njue Ngai matter, we find no justifiable reason to allow a party who had litigated on the same issue to re institute a similar suit. In our considered view, the former suit having been dismissed for want of prosecution, the latter was res judicata and cannot stand. The 1^st Respondent filed a suit which he failed and neglected to prosecute, it cannot be proper for him to wake up again and decide to start the same process again. We agree with the Appellant that this would be contrary to public policy that litigation must come to an end and the best the 1^st Respondent could do was to invoke the appellate process and not filing a fresh suit.”

31.  The law is clear that where a suit is dismissed for want of prosecution, the affected party can only apply for review of such a decision, or appeal. As was stated in the Cooperative Bank case (supra), the Plaintiffs cannot prosecute a fresh suit in respect of the same issues and against the same Defendants after the dismissal of Machakos ELC Case number 22 of 2017. That being the case, it is my finding that the Application and the suit before me are incompetent and bad in law.

32.  For those reasons, the Plaintiffs’ suit and Application dated 26^th February, 2021 are dismissed with costs.

DATED, SIGNED AND DELIVERED VIRTUALLY IN MACHAKOS THIS 22ND DAY OF OCTOBER, 2021.

O. A. ANGOTE

JUDGE

In the presence of;

N/A for the Plaintiffs

Mr. Ngolya for the 1^st Defendant

Court Assistant – John Okumu