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M’Njogu v Meru County Land Registrar & 3 others; H. Young & Co. (E.A) Ltd & another (Interested Parties) (Civil Appeal 21 of 1990) [2022] KEHC 15928 (KLR) (30 November 2022) (Ruling)
Neutral citation:
[2022] KEHC 15928 (KLR)
Republic of Kenya
Civil Appeal 21 of 1990
EM Muriithi, J
November 30, 2022
Between
Jeremiah M’Njogu
Applicant
and
Meru County Land Registrar
1st Respondent
Meru County Lands Surveyor
2nd Respondent
Meru County Lands Control Board
3rd Respondent
National Land Commission
4th Respondent
and
H. Young & Co. (E.A) Ltd
Interested Party
Martha Naitore M’Murithi
Interested Party
Ruling
Brief history of the case
1.The Court of Appeal vide a consent order dated 17/5/1988 ordered that, “M’Tuarugoji Kirimunya to transfer 1½ acres of the suit property to Samuel M’Murithi and 2 acres to Jeremiah Njogu and to retain the remainder for himself (roughly half an acre or thereabouts).”
2.On 26/9/1990, Oguk J declared Janet Tirindi Kathunguri to have a life interest in half acre of the suit property around her existing house on that land, which portion of ½ acre of land should be properly surveyed and marked out. It was further ordered that the reversionary interest on the said ½ acre should go to any son of Twarugoji Kirimunya who she will appoint as her successor. It was further ordered that any intended sub division by Twarugoji Kirimunya of the suit property would not take effect until the ½ acre portion was first excised and registered in the name of Janet Tirindi with the words “Trustee” added against her name. Twarugoji Kirimunya was thereafter empowered to sub divide the remaining portion of the suit property amongst his family as he deemed fit.
3.Jeremiah M’Njogu applied to the court (Oguk J) to review his decision of 26/9/1990 on the basis that it contradicted the Court of Appeal consent order of 17/5/1988. In its decision of 19/5/1991, the Court (Oguk J) stated that:
4.On 17/5/1991, the Court of Appeal, in dismissing an application for stay of execution of the decision of the Court (Oguk J.) held that:
5.It appears the suit property was subsequently subdivided into Ntima/Ntakira/2488 and 2489.
6.It further appears that Janet Tirindi obtained registration of Ntima/Ntakira/2488 in her name on 18/6/1997 and Jeremiah Njogu moved to the High Court to challenge that registration. The Court (Kuloba J.) on 9/12/1997 ruled that:
7.On 15/5/2003, the Court (Kasanga Mulwa J) in dismissing an application by Jeremiah Njogu to stop the implementation and execution of the Court of Appeal consent orders, stated that:
8.This court has looked at the letter from the Court of Appeal where the interpretation of the Court of Appeal orders of 17/5/1988 and 17/5/1991 was provided as follows:
9.An application dated 4/10/2010 was filed in court by Janet Tirindi Kathunguri seeking approval of the appointment of Gelverse Mutethia Johnas Janet Tirindi Kathunguri’s successor in terms of the judgment of Honorable S.O Oguk dated 26/9/1990. On 3/2/2011, the Court (Lesiit J.) ordered:
10.That did not sit well with Jeremiah M’Njogu, who moved the Court by Chamber Summons filed on 27/10/2011 seeking review of those orders and reinstatement of Ntima/Ntakira/685. He averred at paragraph 6 of his affidavit in support that:He urged the Court at paragraph 14 of the said affidavit that:
11.The Court (F. Gikonyo J) was invited to interpret all the court orders in this file and the learned judge stated in his ruling dated 25/1/2018 as follows:
12.Did the matter rest? No. The Court was once again moved on 16/4/2018 by Jeremiah M’Njogu to clarify which of its rulings of 26/9/1990 and 19/3/1991 was meant for execution. In its ruling delivered on 29/10/2018, the Court (F.Gikonyo J.) had this to say:
13.On 7/3/2019, the dispute spilled over to the Environment and Land Court. Jeremiah M’Njogu sought from that court cancellation of the sub division of Ntima/Ntakira/685 and implementation of the Court of Appeal consent order of 17/5/1988, where the ELC Court (Lucy N. Mbugua J) dismissed Meru ELC JR No. 19/2016 and Meru ELC JR No.5/2008, and marked the case as closed.
The applications
14.Here we are again in 2022, with 4 applications by Jeremiah M’Njogu, the applicant herein, dated 27/1/2022, 16/2/2022 and 15/3/2022 (henceforth called the 1st, 2nd, 3rd and 4th applications, respectively).
The 1st application
15.It seeks that: “1) Because Court FileNo. 22 of 1984 was Destroyedthrough Kenya GazetteNo. 949 dated 15-01-2019, I pray that this Honorable Court to allow this Application to be referred to High Court file No. 21 of 1990 as it refers the Court of Appeal matters.2) This Honorable court be pleased to enforce execution of the said Court of Appeal order as follows: a) By empowering the 1st respondent (Meru County Land Registrar) to reinstate parcel No. Ntima/Ntakira/685 and to cancel the illegal title Deed issued to Janet Tirindi Kathunguri, for fresh sub-division. b) By empowering the County Land Surveyor to cancel the wrong sub-division mutation and to draw a correct sub-division mutation in concurrence with the Court of Appeal. c) By issuing restriction order to the instant 2nd interested party (Martha Naitore M’Murithi) from interfering with implementation of the Court of Appeal Order as has been the case with her. d) By empowering the 4th respondent (The National Land Commission) to grant sub-division consent to the court of Appeal Orders. e) By ordering the 1st interested party (H. Young & Co. (E.A) Ltd) to adhere with High Court Order dated 3-6-2015 issued against the 1st interested party in J.R No. 31 of 2013.”
16.In his supporting affidavit sworn on even date, the applicant contends that the Court of Appeal vide its ruling of 19/3/2021 made it clear where execution proceedings of the Court of Appeal order should take place, hence this application. He urges this court to enforce execution of the Court of Appeal order by granting the orders prayed for, to enable the 1st, 2nd, 3rd and 4th respondents to comply with the implementation of the Court of Appeal order.
The 2nd Application
17.It seeks, “1. That the Honorable Meru High Court be pleased to recognize the Court of Appeal orders dated 17/5/1988, 17/5/1991 and 19/3/2021 that parcel of land No. Ntima/Ntakira/685 belongs to Samuel M’Murithi with 1½ acre, Jeremiah M’Njogu with 2 acres and Twarugoji Kirimunya ½ acre or thereabout and to acknowledge that the suit land does not belong to the deceased any longer for it henceforth changed ownership lawfully for the Court of Appeal order is law. 2. That this Hon. Court be pleased to RULE OUT any other dispute of any form brought before it concerning parcel No. Ntima/Ntakira/685 before the Court of Appeal orders are implemented to the letter.”
18.In his supporting affidavit sworn on even date, he faults the court for failing to recognize the Court of Appeal orders by allowing the litigation herein to continue yet the same was settled by the Court of Appeal.
The 3rd application
19.It seeks, “That this honorable Court be pleased to order the A.G. to substantiate the A.G letters Ref. AG/MRU/J/133 dated 23-12-2008 and the AG’S Grounds Of Objectiondated 10th November 2021 and the AG’s clients’ letters Ref: Ntima/ntakira/685 dated 23/3/2003 and Ref: MER/ADM/16/VOL.1/137 dated 01-11-2010, Ref: MER/ADM/COM/VOL.1/137 dated 9-01-2014 and Application for Registration dated 21/7/2020 in comparison to Court of Appeal letters dated 23-10-1991 and 14-7-1992, failure to which the AG must withdraw the Grounds Of Opposition and concede with the Motion seeking enforcement of implementation of Court of Appeal orders as instructed by A.G’s clients. 2. That this honorable Court be pleased to restrain the A.G from preventing the Ministry of Lands from implementing execution of Court of Appeal orders, and from inciting parties of this case to oppose execution of Court of Appeal orders.”
20.In his supporting affidavit sworn on even date, he refers to various letters by the A.G acknowledging settlement of this land dispute by the Court of Appeal. He accuses the A.G of going against their word by inciting its clients to defy the implementation of the Court of Appeal orders, and he urges the court to enforce the execution of the Court of Appeal order without further hindrance as has been the case.
The 4th Application
21.It seeks “1) That the respondent (Martha Naitore M’Murithi) do intricate her legal basis for her opposing of execution of Court of Appeal orders and for seeking revocation of certificate of confirmation of a grant on the grounds that the instant applicant has failed to comply with the High Court ruling dated 26-9-1990 (Oguk J) failure to which this honorable court is prayed to restrict the respondent herein from interfering with the execution of Court of Appeal orders and the suit land. 2) That the instant respondent do prove her claim that the Court of Appeal did not settle Meru High Court Appeal No. 21 of 1990 and the Court of Appeal letters dated 23-10-1991 and 14-7-1992 were imaginary, failure to which this honorable court is prayed to find the respondent herein a Court of Appeal order Condemnor, and that she face the consequences for contempt of court.”
22.In his supporting affidavit sworn on even date, he accuses the respondent of failing to recognize the clarification by the Court of Appeal of its orders, by continuing to challenge the same in this court. He further accuses the respondent of making every effort to defeat the execution of the Court of Appeal order by having the grant revoked. He therefore wants the respondent to be found to be in contempt of the Court of Appeal orders and be retrained from interfering with execution of the said orders.
Responses
23.Instead of responding to the applications, H. Young & Co. (E.A) Ltd, the 1st interested party herein filed an application dated 23/5/2022 seeking to be struck out from these proceedings on grounds that it was contracted by Kenya Urban Roads Authority, to carry out constructions on a part of Ntima/Ntakira/685, and during the entire construction period, it was not served with a court order barring the same. After the completion of the construction was inspected on 13/5/2020, it was issued with a Taking Over Certificate, and since it had not vested any interest in the disputed land, Jeremiah M’Njogu does not have a claim against it.
24.Martha Naitore M’Murithi, the 2nd interested party swore a replying affidavit on 30/6/2020 in opposition to the application dated 16/3/2022 by the applicant. After giving the long history of this dispute, she accuses the applicant of going to great lengths to defeat the decision of Oguk J and wants the application dismissed.
25.She also filed an application dated 29/6/2022 seeking, “1) That a declaration be made that Mr. Jeremiah M’Njogu and any other person in his group or claiming through him should be responsible for the costs of this suit. 2) That Mr. Jeremiah M’Njogu be ordered to deposit the amount of Kenya Shillings Six Hundred Thousand (Kshs. 600,000) or such other amount as this Honorable Court may deem reasonable with the court as security for costs in this matter within (30) days of the court’s order failing which the applications filed herein and dated 15/3/2022, 15/2/2022 and 27/02/2022 be dismissed. 3) That pending the hearing and determination of this application as well as the provision of such security for costs as shall be ordered by the court all further proceedings by Mr. Jeremiah M’Njogu be stayed. 4) That Mr. Jeremiah M’Njogu, in any event, be ordered to meet the costs of this application.”
26.In her supporting affidavit sworn on even date, she wants the applicant punished, by way of costs for dragging her and other beneficiaries in court for years on end as he lays claims, with no basis, to the estate of Janet Tirindi that was given to her by Oguk J.
27.The 2nd interested party also filed grounds of opposition dated 30/6/2022 on the grounds that the court is functus officio, as the issues raised herein have been dealt conclusively by other judges, and the applicant ought to have pursued an appeal instead of continuously filing numerous, vexatious and malicious applications on this closed file.
28.The applicant swore a replying affidavit on 7/7/2022 opposing the application dated 29/6/2022. He urges the court not to punish him for seeking enforcement of administrative justice, and he was preparing to take legal action on the certificate of confirmation of grant issued to the 2nd interested party on 8/12/2002.
Submissions
29.The applicant filed 3 sets of submissions on 20/7/2022, 3/8/2022 and 14/11/2022. He submitted that the respondents were in contempt of the court orders, and went to great lengths to prolong execution of the Court of Appeal orders by demanding that the decision of Oguk J. dated 26/9/1990 remained unchallenged to date contrary to the Court of Appeal orders of 17/5/1991 and 19/3/2021. He urged the court to recognize settlement of the land dispute and grant enforcement order for execution of Court of Appeal order so as to put a lasting solution to this dispute. He brought to the court’s attention the decision of 3/11/2022 by the Court of Appeal setting aside the ruling of Njoroge J. of the Environment and Land Court (ELC) of 19/2/2018 and restoring the Motion of 28/10/2013 for hearing and determination on merits.
30.The 2nd interested party urged that the applicant had caused chaos and confusion by insisting on filing application after application in this matter, and relied on William Koross (Legal personal Representative of Elijah C.A. Koross) v Hezekiah Kiptoo Komen & 4 others (2015) eKLR where the Court of Appeal, faced with a protracted litigation on a singular matter quoted Charles Dickens’ satire on intractable litigation rendered in his peculiar and memorable prose, in Bleak House; (Bradbury and Evans, (1853); Gadshill Edition, p.5) as follows:She urged the court to dismiss the applications, as this court is functus officio but prayed for her application for security for costs to be allowed.
Analysis and determination
31.This court notes that the applicant’s application, although framed and lodged as 4 separate applications raise the same issue of whether there exists a Court of Appeal order due for execution and enforcement by this court. The determination of the Interested Parties applications depends on the outcome of the applicant’s applications.
32.On 26/9/1990, Oguk J declared Janet Tirindi Kathunguri to have a life interest in ½ acre of the suit property around her existing house on that land. The court further ordered that the reversionary interest on the said ½ acre should go to any son of Twarugoji Kirimunya who Janet Tirindi Kathunguri would appoint as her successor. Following the said court orders and in execution of the Court of Appeal orders of 17/5/1991, Janet Tirindi Kathunguri successfully obtained title to Ntima/Ntakira/2488 in her name as a trustee. Shortly before her death, she applied to court to approve her appointment of Gelverse Mutethia John, as her successor. The allegation by the applicant that the said Court order has not been executed is, therefore, incorrect.
33.This court sees no contradiction between Justice Oguk’s decision of 26/9/1990 and the Court of Appeal order of 17/5/1991. The Court of Appeal order of 17/5/1991 which was subsequently interpreted by the said court on 23/10/1991 read in part that, “½ acre to be retained by Twarugoji Kirimunya. Janet Tirindi Kathunguri to live on ½ retained by Twarugoji for life.” The applicant’s objection seems to be with the part of the order directing Janet Tirindi Kathunguri to live on the ½ acre given to his deceased father, Twarugoji Kirimunya.
34.It must be remembered that the decision by Oguk J has not been reviewed, set aside or overturned on appeal, and therefore it still stands. This court notes, with sympathy that the issues raised by applicant in all his applications has since been conclusively dealt with by this court, and there is nothing more this court can do for him. The applicant had filed a similar application on 16/4/2018 seeking the court’s intervention in knowing which of the Orders of 26/9/1990 and 19/3/1991 was meant to be executed. The court (F. Gikonyo J) on 29/10/2018, after affirming the decision of Oguk J of 26/9/1990 declared the court as functus officio.
35.It is clear the applicant has previously tried to stop the implementation of the Court of Appeal consent orders, but the Court (Kasanga Mulwa J), in dismissing an application by Jeremiah M’Njogu to stop the implementation and execution of the Court of Appeal consent orders, ordered that –
36.It is thus clear to this court that the parties were given liberty to execute the Court of Appeal orders.
37.It is wrong for the applicant to accuse the Court of failing to recognize the Court of Appeal orders by allowing litigation herein to persist, yet he is the person who has continuously been moving the court to the detriment of the other parties.
38.This court finds that the applicant had failed to prove how the Attorney General and the 2nd interested party have stood on the way of the implementation of the Court of Appeal orders.
39.It is indeed the applicant who has been interfering with the implementation of the Court of Appeal orders, by continuously filing multiple applications in court.
40.This court notes that this court file number is Civil Appeal No. 21 of 1990 and all subsequent applications have been filed using that number. The issue of the destruction of Court file No. 22 of 1984 does not arise.
Conclusion
41.For the reasons set out above, this court, while deeply sympathetic of the applicant’s obvious travails in this litigation, finds that the applicant’s remedy lies elsewhere, and there is nothing left for this court to determine. The 1st Interested Party was wrongly brought into these proceedings by virtue of a contract between itself and Kenya Urban Roads Authority. It follows that the 1st Interested Party’s application is merited and it is allowed as prayed.
42.As for the 2nd interested party’s application for provision of security for costs, this court, having determined the applicant’s applications on merits, finds that indeed she has incurred a lot expenses in defence of the plethora applications by the applicant and she would be entitled to security for costs. However, in view of the order herein halting further proceedings, this court does not make any order as to provision for security for costs.
Court of Appeal directions
43.The applicant filed an application dated 28/10/2013 before the Environment and Land Court challenging the validity of this court’s (Oguk J) orders dated 26/9/1990, on the allegation that the said orders had been reviewed by this court’s orders of 19/3/1991. He further sought an order that this court’s order of 19/3/1991 had been overtaken by the Court of Appeal consent order of 19/5/1991 as interpreted on 23/10/1991.
44.The application was dismissed by the ELC Court vide a ruling dated 19/2/2018 but on appeal, the Court of Appeal on 3/11/2022 set aside the said ruling and restored the application for hearing and determination on merits. That matter is not before this court and the court shall say no more on it.
Orders
45.Accordingly, for the reasons set out above, the court makes the following orders:1.The Applicant’s applications dated 27/1/2022, 16/2/2022 and 15/3/2022 are dismissed with costs to the 2nd Interested Party.2.The 1st Interested Party’s name is struck out from these proceedings. The Court does not make any orders as to costs for the 1st Interested Party.3.This Court is functus officio upon the Orders of the Court made on diverse dates by the Court - Oguk J.; Kasanga Mulwa J.; and culminating with the Order Gikonyo J. of 29/10/2018 - and the file is, therefore, marked closed.4.Consequently, the Court does not make any orders as to the provision for security for costs sought by the 2nd Interested Party.
Order accordingly.
DATED AND DELIVERED ON THIS 30TH DAY OF NOVEMBER, 2022.EDWARD M. MURIITHIJUDGEAppearancesMr. Jeremiah Njogu, Applicant in person.N/A for the Respondent.Ms Olendo for the 1st Interested Party.Mr. Mwaro and Ms. Kaiyugira for the 2nd Interested Party.5MERU HCCA NO. 21 OF 1990
