Analysis and Determination
A. Whether the Petition by the 2 Petitioners is an abuse of the process of court.
12.The fact that there are or have been other cases involving the suit property, the subject matter of this petition is clearly discernible from the Petitioner’s pleadings. At paragraph 33 of the Petition, the Petitioners plead that they, ‘and other individuals not party to this suit have been involved in a myriad of Civil Suits in defending properties that comprise of Nairobi/Block 37’. They have listed the matters as:-i.In Milimani HCCC NO. 1065 of 2003 Mohammed Abdi Guhad Vs Gerishon Kamau Kirimawas successful as Plaintiff withdrew the suit with costs to the Defendants.ii.Milimani HCCC No. 622 of 2011 Mohammed Sheikh Hussein vs Capital Cars And Trucks Limited, the Defendant/Applicant a lessee of the petitioner was seeking eviction and vacant possession which the plaintiff was seeking eviction and vacant possession which matter culminated in the Plaintiffs’ suit been dismissed with costs to the Defendant by Justice R Ougo, Ruling dated June 12, 2012.iii.Milimani Elc Petitione 45 Of 2017 Catheirne Njeri Macharia, Rachel Wachuka Ndei and Teresia Wairimu Kirima (suing on behalf of the Estate of the Late Fredrick Kirima Kamau And Samuel Ndei Kamau (deceased) vs Peter Munyiri Kaka Arina, Nairobi City County Government And Chief Land Registrar: is still ongoing.iv.Milimani CMCC Suit No. 624 of 2012 Mohammed Sheikh Hussein vs Capital Cars And Trucks Limited; the Plaintiff was seeking damages for trespass and an order of eviction against the Defendants (who were tenants of the petitioner) was stayed pending hearing and determination of Milimani HCCC No. 622 of 2011.v.Nairobi Elc 1458 of 2014 Ramuka Agencies Vs Stephen Kamau Kirima; still ongoing.
13.Earlier on, at paragraphs 25-28, the Petitioners averred that around the year 2003, they suspected fraudulent dealings concerning the suit property when third parties started making claims to the property. A search on the title disclosed that the suit property had been fraudulently and unlawfully registered as Nairobi Block 37/87 under the Registered Land Act and a title issued to one Cascade Enterprises Ltd. The 1st Petitioner filed a suit against Cascade Enterprises being Nairobi Civil Suit No. 1037/2003 (Kenda Investments Ltd-vs- Nairobi City Council and Cascade Enterprises Ltd). The Suit was later numbered 1188/2007 and in the Petitioners own words, is still on-going, and there has been a status quo order in place.
14.The Petitioners further contend that the 1st & 2nd Respondents have a title claiming that the suit premises belonged to one Morad Abdalla Islam, now deceased.
15.At paragraph 28, the Petitioners aver that the 1st and 2nd Respondent moved the Kadhi’s Court at Nairobi to have an order barring the Petitioners from utilizing their rightfully owned property.
16.In the affidavit supporting the Application by the Petitioners, the 2nd Petitioner at paragraph 8 thereof deposes that the 1st Petitioner was in possession and actual occupation of the suit property until the 1st & 2nd Respondent enjoined the 1st Petitioner in a suit at the Kadhi’s Court claiming that ‘the suit premises belonged to their deceased kin, one Morad Abdalla Islam who is said to be deceased, and are now purporting to distribute the Estate’. The suit property forms part of the Estate of the deceased Morad Abdalla Islam. The 1st Petitioner attached a copy of the certificate of confirmation of grant from the Nairobi Kadhi’s Court Succession Cause No. 10 of 2019 marked ‘TK 4’.
17.From the responses by the 1st & 2nd Respondent, it is clear that Morad Abdalla Islam (deceased) acquired the suit property from Cascade Enterprises Ltd. The 1st & 2nd Respondents are the administrators of his estate.
18.Despite the ‘myriad of suits’, the Petitioner still went ahead to file this petition. This is one of the reasons why the Respondents refer to Petition as an abuse of the process of court. The second reason is that the claim by the Petitioners is time-barred.
19.The Respondents have cited a number of decided cases to argument their submissions on the issue of abuse of the process of court.
20.In the case of Kimunya – Vs- Mohammed & Another (2022) KEEL 2264 (KLR), the court cited with approval the Court of Appeal dictum in Muchanga Investment Ltd –vs- Safaris Unlimited (Africa) Ltd & 2 others (2009) eKLR where the court stated that,
21.The court went on to find that the Applicant (in the case) was abusing the court process by opting to file a fresh application instead of filing an application to reinstate the earlier one that had been dismissed.
22.The Black’s Law Dictionary, 6th Edition on the other hand defines abuse as,
23.In the case of Godfrey Paul Okutoyi (suing on his own behalf and on behalf of and representing and for the benefit of all past and present customers of Banking institutions of Kenya –vs- Habil Olaka - Executive Director (Secretary of the Kenya Bankers Association being sued on behalf of Kenya Bankers Association) and Another (2018) eKLR, the court held that;
24.Mativo J (as he then was) in the case of Satya Bhama Gandhi –vs- Director of Public Prosecutions & 3 others (2018) eKLR, was categorical that,
25.Mativo J, observed that, “the situations that may give rise to an abuse of court process are indeed in-exhaustive……it involves situations where the process of court has not been or resorted to fairly, properly honestly to the detriment of the other party.”
26.‘Abuse of court process in addition to the above arises in the following situations:a)Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.b)Instituting different actions between the same parties simultaneously in different courts even though on different grounds.c)Where 2 similar processes are used in respect of the same right for example a cross appeal, and a respondent notice.d)Where an application for adjournment is sought by a party to and action to bring another application to court for leave to raise issue of fact already decided by the court below.e)Where there is no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.f)Where a party has adopted a system of forum shopping in the enforcement of a conceived right.g)Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the court of appeal.h)Where 2 actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the annoyance or irritation of an opponent.’
27.As I have already pointed out, the petitioners filed this petition acutely aware of the existence of the other cases. They were at one point in time, as they admit in their pleadings, parties in the case before the Kadhi’s Court in Nairobi involving the subject matter of this petition. The Kadhi’s court emphatically stated that:
28.The petitioners have not approached this court by way of an appeal from the decision of the Kadhi’s court nor by way of judicial review proceedings challenging the legality of the decision of the Kadhi’s court. They have filed a fresh case by way of this petition seeking amongst other orders, the revocation of the title held by the 1st and 2nd Respondent for all that land known as plot number 62 on LR No. 209/11092/69 at Nairobi City Park Estate also known as Nairobi Block 37/87.
29.There is also the case against Nairobi City Council and cascade enterprises Ltd which the petitioners have in their pleadings confirmed is ongoing. This is the case, Nairobi Civil Suit No. 1037/2003 (Kenda Investments Ltd-vs- Nairobi City Council and Cascade Enterprises Ltd).
30.Cascade Enterprises Ltd was the entity that transferred the title to the suit property to the estate of Murad Estate of Murad Abdallah Islam according to the Petitioners. The 1st and 2nd Respondents are the Administrators of the said Estate. All that the Petitioners needed to do was to seek to join the 1st and 2nd Respondent in the ongoing case instead of filing a fresh case. The alleged fraud according to them was committed by Cascade Enterprises Ltd who thereafter transferred the title to the late Murad Abdallah Islam.
31.The filing of this case is a clear abuse of the court process. As already noted earlier on, this court has an inherent jurisdiction to protect itself from abuse and/or ensure that its process is not abused. The only way to do that is to strike out the petition herein with costs, which I hereby do. Consequently, the application by the petitioners is as well hereby struck out with costs.
32.There is another aspect which I must address in this ruling. The question I pose is why the petitioners found it necessary to file a constitutional petition to address what they refer to in paragraph 25 of their petition as ‘fraudulent and unlawful registration of title’.
33.All the Respondents, from their responses, seem to be in agreement that the reason why the petitioners opted for a constitutional petition rather than an ordinary civil suit was to circumvent the issue of limitation of time against their claim. I agree with the Respondents. The Petitioners claim is time-barred. The Petitioners at paragraphs 25-28, of their petition pleaded that around the year 2003, they suspected fraudulent dealings concerning the suit property when third parties started making claims to the property. They conducted a search that revealed that the suit property had been fraudulently and unlawfully registered as Nairobi Block 37/87 under the Registered Land Act and a title issued to one Cascade Enterprises Ltd. The cause of action then arose in the year 2003 when the Petitioners allegedly ‘discovered’ the fraud. This again amplifies the Respondents’ claim of abuse of the process of court by the Petitioners.
34.Whatever their reason was for opting not to file an ordinary civil suit, the jurisprudence in this country is now well settled to the effect that a court should not entertain a constitutional matter though it may be properly before it where there exists some other basis upon which the case may be determined. This is the ‘principle of avoidance’ also known as ‘constitutional avoidance’.
35.The supreme court of Kenya while upholding the doctrine of constitutional avoidance in the case of Communication Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 Others (2014) eKLR made reference to the South African case of S. vs. Mhlungu 1995 (3) SA 867 (CC) where Kentridge AJ articulated the principle of avoidance in a minority judgement in the following words: -
36.The supreme court further quoted with approval the holding by the US Supreme Court in the case of Ashwander vs Tennessee Valley Authority, 297 U.S. 288, 347 (1936) that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of.
37.The Petitioner claim of fraudulent registration of title in this matter should be by way of an ordinary civil suit where the allegations of fraud would be specifically pleaded and particularized in accordance with the law.
38.I further find that this petition is an abuse of the process of the court for violating the doctrine of constitutional avoidance. I would strike it out with costs for that reason as well.
39.I find it befitting at this juncture to quote directly from the decision of the court in the case of Satya Bhama Gandhi –vs- Director of Public Prosecutions & 3 others (supra), where the court stated that;
B. Whether the 2nd Petitioner has the locus standi to institute the petition.
40.At paragraph 2 of the petition, the 2nd petitioner is described as ‘a female adult of sound mind, & a shareholder of Kenda Investment Ltd’ which is the owner and has been in possession of the suit property. Kenda Investments Ltd, on the other hand is described as a limited liability company incorporated in the Republic of Kenya.
41.It is a principle well established in law since ancient times that a limited liability company is a separate legal entity independent of its shareholders and directors. It has the capacity to sue and be sued on its own independent of its directors and shareholders. That was the unanimous holding of the House of Lords in the well-known case of Salomon vs A. Salomon & Co. Ltd ( 1897) AC.
42.From the petition, the suit property is allegedly owned by Kenda Investment Ltd.
43.In the case of Arthi Highway Developers Ltd vs WestEnd Butchery Ltd & Others (2015) eKLR, the Court of Appeal quoted with approval the holding of Lord Denning M.R in Moir vs Wallersteinerr (1975) 1 ALL ER 849 at p. 857, where he stated that: -
44.The company itself is the only one that can sue on its own behalf.
45.The court’s finding therefore is that the 2nd petitioner lacks the locus standi to institute the petition as she did.