Introduction And Background
1.Vide notice of motion application dated the December 9, 2022, the applicant herein has approached the honourable court seeking for the following reliefs;
2.The instant application is anchored and premised on various, albeit numerous grounds, which have been enumerated in the body thereof. For clarity the grounds thereunder are itemized from grounds (a) to (j), all inclusive.
3.Furthermore, the instant application is premised on a lengthy and elaborate affidavit sworn by the defendant/applicant on the December 9, 2022, as well as another affidavit sworn by one Antony Munyasia. For clarity, same is also sworn on the December 9, 2022.
4.Upon being served with the instant application, the plaintiff/responded thereto vide grounds of opposition dated the February 6, 2023, wherein the plaintiff/respondent has contended, inter-alia, that the current application is misconceived and bad in law.
5.Be that as it may, the current application came for mention on the January 26, 2023, whereupon the advocates for the parties agreed to canvass and dispose the application vide written submissions. Consequently, the honourable court proceeded to and set timelines for the filing and exchanging the written submissions.
6.It is imperative to note and underscore that the applicant thereafter proceeded to and filed written submissions dated the February 28, 2023. However, the respondent herein did not file any written submissions.
7.Notwithstanding the foregoing, when the matter came up for mention on the March 2, 2023, learned counsel for the respondent intimated to the honourable court that same will not be filing any written submissions as pertains to the subject application.
8.Additionally, learned counsel for the plaintiff/respondent proceeded and stated that same shall be relying on the grounds of opposition duly filed on behalf of the respondent.
Submissions By The Parties
a. Applicant’s submissions
9.The applicant herein filed written submissions dated the February 28, 2023 and in respect of which the applicant has raised, highlighted and amplified four issues for consideration by the honourable court.
10.First and foremost, learned counsel for the applicant has contended that the impugned originating summons dated the August 19, 2022, is premised and or anchored on malicious, baseless, scandalous and fictitious grounds, which are calculated to abuse the due process of the honourable court.
11.In addition, learned counsel for the applicant has submitted that the averments contained at the foot of the affidavit in support on the originating summons are merely calculated to aid the plaintiff/respondent in grabbing the applicant’s land, albeit without lawful cause and or basis.
12.Furthermore, learned counsel for the applicant has submitted that the plaintiff/respondent has also propagated and adduced before the honourable court false and fabricated documents, which are (sic) purported to have been procured and obtained from the land office.
13.However, learned counsel for the applicant has contended that the impugned documents, which are being relied upon, are contrary to and in contravention of the requisite form that is authorized and mandated pursuant to regulation 86 of the Land Registration (General) Regulations 2017.
14.On the other hand, learned counsel for the applicant has further proceeded to and submitted that the Cabinet Secretary has since generated a circular to denounce the existence of certain fake certificate of searches, which are purported to have been obtained from the land registry.
15.Other than the foregoing, learned counsel for the applicant has also ventured to and contended that the respondent herein is a person of no known means and place of abode.
16.Additionally, learned counsel for the applicant has also contended that the photographic evidence, which have annexed to the supporting affidavit, in support of the originating summons, appear to be fictitious and fabricated.
17.To surmise, counsel for the applicant has therefore contended at the foot of paragraph 13 of the written submissions that there exists overwhelming evidence that the respondent has never resided on the suit property and in any event, is not in occupation of the same.
18.Consequently and in the premises, counsel has added that the originating summons is therefore baseless and hence ought to be struck out.
20.Secondly, learned counsel for the applicant has submitted that the instant originating summons ought to proceed as if same was filed vide plaint, to enable the honourable court to interrogate the validity and propriety of the claims made by the plaintiff/respondent.
21.Furthermore, learned counsel for the applicant has contended that the allegations at the foot of the current proceedings, include inter-alia, claims of forgery and fraud, which have been made against the plaintiff/respondent and hence such claims can only be properly addressed by way of viva voce evidence.
22.In any event, counsel for the applicant has added that hearing of the current originating summons by way of viva voce evidence, will enable the applicant to procure and bring forth evidence by the residents of Karen Golf Park Estate, which evidence would enable the honourable court to fully appreciate the picture and correct position pertaining to the subject matter.
23.As pertains to issuance of directions that the matter herein does proceed vide viva voce evidence, learned counsel for the applicant has invited the court to take cognizance of the provisions of order 37 rule 19 of the Civil Procedure Rules 2010.
24.Thirdly, learned counsel for the applicant has submitted that the facts and evidence placed before the honourable court as pertains to possession and occupation, appear to be contradictory. In this regard, counsel for the applicant has contended that whereas the plaintiff/respondent claims to be in possession and occupation of the suit property, the applicant is of the contrary position and has availed assorted photographic evidence to show that the respondent has never been in possession of the suit property.
25.As a result of the foregoing, learned counsel for the applicant has therefore contended that it would therefore be proper and imperative that the honourable court to visit the locus in quo and thereby establish the true facts as regards occupation and possession of the suit property.
27.Fourthly, learned counsel for the applicant has submitted that there is need to grant leave and join the Chief land Registrar as a party to the instant suit, to enable all the issues in controversy, to be addressed and resolved once and for all.
28.In addition, counsel for the applicant has contended that the Chief Land Registrar is the custodian of land records and hence same would be able to address and answer issues/questions pertaining to veracity of the applicants title documents.
29.Furthermore, learned counsel for the applicant has ventured and stated that a failure to join the Chief Land Registrar would deprive the honourable court of the requisite opportunity to fully understand and appreciate the issues that are in dispute and which have been raised before this honourable court.
30.Consequently and in the premises, counsel for the applicant has submitted that the Chief Land Registrar is indeed a necessary party and thus ought to be joined and/or impleaded in line with the provisions of order 1 rule 10(2) of the Civil Procedure Rules 2010.
32.In the premises, learned counsel for the applicant has therefore implored the honourable court to find and hold that the originating summons filed by and on behalf of the respondent is otherwise an abuse of the due process of the court.
33.In the alternative, counsel for the applicant has submitted that the honourable court should decree and or direct that the originating summons herein does proceed vide viva voce evidence and that the Chief Land Registrar be joined/impleaded as an additional party.
b. Respondents submissions
34.Though the respondent had initially intimated and indicated that same would be filing written submissions in opposition to the current application, same ultimately failed to do so.
35.In any event, when the matter came up for mention on the March 2, 2023, learned counsel for the respondent expressed himself and intimated that contrary to the initial position, same would not be filing any written submissions.
36.For coherence, learned counsel for the respondent thereafter impressed upon the honourable court to proceed and craft a ruling, albeit relying on the grounds of opposition which were filed on behalf of the respondents.
37.Essentially, learned counsel signified that same would be relying on the grounds of opposition dated the February 6, 2023.
Analysis And Determination
Issue number 1Whether the originating summons beforehand constitutes and amounts to an abuse of the due process of the court and thus ought to be struck out.
39.It is common ground that the subject matter was commenced and/or originated vide originating summons dated the August 19, 2022 and in respect of which the plaintiff/respondent contended to have been in occupation and possession of the suit property for more than 12 years.
40.Pursuant to and on the basis that same (read plaintiff/respondent) has been in occupation and possession of the suit property for more than 12 years, same has therefore implored the honourable court to decree that the defendant/applicant’s right and title to and in respect of the suit property have been extinguished by effluxion of time.
41.Furthermore, the plaintiff/respondent has also sought that upon the finding and declaration that the defendant’s/applicant’s title has been extinguished vide effluxion of time, then the honourable court should proceed and make a declaration that the plaintiff/respondent has thereby acquired title to the suit property vide adverse possession.
42.It is imperative to point out that the originating summons filed by and on behalf of the plaintiff/respondent is duly supported by an affidavit, which contains various, albeit numerous averments therein.
43.Furthermore, the impugned supporting affidavit has also brought forth various annexures inter-alia, photographic evidence, exhibited by the plaintiff/respondent and which (sic) are contended to show that the plaintiff/respondent has been in occupation of the suit property.
44.There is no gainsaying that upon being served with the impugned originating summons, the defendant/applicant herein filed various responses vide affidavits and in respect of which same has heavily contested the allegations by the plaintiff/respondent.
45.For completeness, the defendant/applicant herein filed a replying affidavit sworn on the October 19, 2022 and a supporting affidavit, similarly sworn on even date.
46.In respect of both affidavits, the applicant has made various averments including paragraph 18 thereof, wherein particulars of falsehoods and fraud have been articulated and supplied.
47.Other than the foregoing affidavits, the applicant herein has also caused additional documents to be filed in respect of the subject matter. To this end, it is imperative to take cognizance of the affidavit of one Anthony Munyasia sworn on the December 9, 2022; and the witness affidavit of Samuel Gicheru Mburu sworn on even date.
48.From the totality of depositions/ affidavits, filed on behalf of the applicant, what becomes apparent and evident is that the factual situation is hugely in contest and thus debatable.
49.For one, the plaintiff/respondent contends to have been in occupation and possession for (sic) a continuous period of 12 years and thus claims adverse possession.
50.On the contrary, the defendant/applicant has contended inter-alia that the claims by the respondent are anchored on fraud, misrepresentation, deceit, falsehoods and fabrication.
51.Additionally, the defendant/applicant has also contended that assorted documents which had been relied upon by the plaintiff/respondent are actually false and fabricated. Clearly, the picture that comes out of the various depositions, ventilated and espoused by the adverse parties, is one of serious evidential controversy.
52.Consequently and in the premises, the question that does arise is whether this honourable court can interrogate and investigate the veracity or falsity of the various allegations at an interlocutory stage and on the basis of affidavit evidence.
53.The incidental question that also arises and flows as a matter of course is whether this court can make precipitate/ substantive pronouncements on whether there is fraud and fraudulent manufacture of documents, either in the manner contended by the defendant/applicant or at all.
54.Contrary to the invitation, by counsel for the defendant/applicant, the correct and obtaining jurisprudential position is that a court of law is barred and prohibited from making substantive and precipitate pronouncement on issues of facts/evidence and law, at the interlocutory stage.
55.Clearly, the making of such precipitate finding of facts and law is the preserve and province of the trial court and same can only be undertaken after a plenary hearing, in the manner established under the law.
57.Other than the foregoing, it is also established and trite that whilst dealing with an application for striking out of pleadings, the honourable court is not called upon to carry out and or undertake minute analysis and examination of the factual position/controversy and thereafter arrive at a firmed position.
58.Suffice it to point out that a court dealing with and adjudicating upon an application for summary judgment or for striking out, (the latter which is the case herein), is barred from undertaking a mini-trial of the factual and legal controversies arising from and attendant to a particular case.
59.Consequently and in this regard, the court is called upon to and must exercise necessary caution and circumspection so as to avoid undertaking a plenary hearing through a disguised process.
61.Notwithstanding the foregoing, the discussion pertaining to the application for the use of summary process (whether summary judgment or striking out) cannot be concluded without referring to the famous decision in D.T Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another eKLR, where the Court of Appeal thus held as hereunder;
62.In my humble view, the story being told by the plaintiff/respondent, may and could be very well be improbable, but the fact of such improbability does not warrant that the plaintiff/respondent be driven away from the seat of justice without being heard.
63.Consequently and in the premises, I am afraid that the invite to find and hold that the plaintiffs’/respondents’ suit is vexatious, frivolous and an abuse of the due process of the court is legally untenable.
Issue Number 2Whether the Chief Land Registrar ought to be joined (sic) as a party to the instant proceedings or better still, whether sufficient basis has been laid out for the intended joinder.
64.Other than seeking to strike out the suit by and on behalf of the plaintiff/respondent, the applicant herein has also sought to join and implead the Chief Land Registrar as a co-defendant/necessary party.
65.According to the applicant, the Chief Land Registrar is a necessary party in respect of the current proceedings, by virtue of and on account on being the custodian of all land records, inter-alia records pertaining to the suit property.
66.Furthermore, the applicant has contended that the Chief Land Registrar would enable the court to understand and fully appreciate the veracity and or otherwise of the claims by the respondent that the applicant title are fraudulent and forgery.
67.Other than the foregoing, it has also been contended that the joinder of the Chief Land Registrar, will enable the honourable court to resolve all the issues in controversy once and for all.
68.Despite the contention by and at the instance of the applicant, it is imperative to state and underscore that the claim beforehand touches on and concerns adverse possession and hence, the allegations of fraud, if any, can not be adverted to and be addressed by the honourable court vide the current proceedings.
69.To my mind, all that the plaintiff/respondent is claiming is that same (plaintiff/respondent) has been in occupation and possession of the suit property for more than 12 years and hence seeks to be declared as the owner thereof on the basis of such occupation and possession.
70.Given the nature of the claim contained at the foot of the originating summons, the critical evidence that will have to be placed before the court for purposes of determining the dispute, relates to evidence of possession and occupation.
71.Consequently, where no evidence is tendered and placed before the court, to establish and demonstrate such occupation for the requisite/statutory duration, then the honourable court will have no basis to make any declaration or at all.
72.In my humble and respectful view, the dispute beforehand, touches on and concerns adverse possession and I do not see how relevant and necessary, a Chief Land Registrar will be, in respect of such a matter.
73.Furthermore, from the various affidavits filed by the applicant himself, there is no dispute that the applicant is indeed the lawful and legitimate owner of the suit property. However, the only question is whether his title to the suit property has been extinguished on the basis of a third-party occupation.
74.In the premises, I do not see the relevance of (sic) joining the Chief Land Registrar in a matter, where his presence, will not add value. For clarity, the provisions of order 1 rule 10(2) of the Civil Procedure Rules 2010 are only meant to facilitate the joinder of necessary parties or better still, parties whose presence is necessary for purposes of determining the issues in dispute.
75.To the contrary, the impugned provision of the Civil Procedure Rules are not meant to facilitate the joinder of (sic) parties who have no role to play and/or contribute in the impugned proceedings. Clearly, such joinder would only operate to convolute and obscure the issues.
76.Other than the foregoing, it is also not lost on the court that the current suit was filed by the plaintiff/respondent and hence it was the business of the plaintiff/respondent to determine who are the parties, against whom he has claims/causes of actions.
77.Unfortunately, the plaintiff/respondent herein did not deem it fit and appropriate to implead the Chief Land Registrar and perhaps, for good measure.
78.Having not impleaded the Chief Land Registrar, the question that does arise is whether the defendant/applicant can now compel the plaintiff/respondent to implead a party and/or better still join a party, against whom he has no cause of action.
79.In a nutshell, my answer to issue number two (2) is two – pronged; Firstly, the issue in dispute touches on adverse possession and jurisprudence pertaining to adverse possession is to the effect that same can only be impleaded where the title of the adverse party is not under challenge on the basis of how it was acquired.
80.Secondly, the suit herein is owned by the plaintiff herein and hence, unless there are exceptional situations, to warrant the invocation and application of the provisions of order 1 rules 10(2) of the Civil Procedure Rules, 2010, the plaintiff must be left to pilot his case in the manner same deems best and appropriate.
82.Furthermore, the jurisdiction of the court to facilitate the joinder of a person either as a co-defendant (see order 1 rule 3 of the Civil Procedure Rules) or as an interested party/necessary party (see order 1 rule 10(2) of the Civil Procedure Rule), is similarly, circumscribed and the court can only proceed to decree joinder, in whatsoever capacity, once the court ascertains (sic) the stake hold and/or interests of (sic) the parties sought to be joined into the suit.
84.For coherence, the court stated and held as hereunder;
85.As a result of the foregoing exposition, details in terms of the preceding paragraphs and coupled with the decisions (supra), I am not disposed to order and direct that the Chief Land Registrar be joined in the suit, either in the manner sought or at all.
Issue Number 3Whether the applicant has established and demonstrated a basis to warrant visitation to the locus in quo.
86.In civil proceedings, like the one beforehand, the burden of proving the claims and issues raised before the honourable court lies on the shoulders of the plaintiff. See sections 107, 108 and 109 of the Evidence Act chapter 80 Laws of Kenya.
87.Consequently and in respect of the instant matter, there is no gainsaying that the plaintiff herein shall be called upon to tender and place before the honourable court the requisite evidence towards proving the claims beforehand.
89.Other than the foregoing, the obtaining legal system/ position calls upon the parties, that is, both the plaintiff and the defendant, to procure and bring forth all the requisite evidence before the court. For clarity, it is imperative to underscore that it is the parties to bring the evidence before the honourable court and not the converse.
90.Be that as it may, there are instances where a court may be called upon to venture out of the legal strictures, where parties are to bring forth evidence and go out to the locus in quo to ascertain, confirm or verify an issue/situation.
91.However, it must be clearly understood that the circumstances where a court will venture out and visit the status in quo are limited in scope and number. Simply put, visitation to the locus in quo is an exception, and not the general norm.
92.In the premises, where a party to the civil proceedings requires a court of law to venture out and go to the locus in quo, it behooves such a party to place before the honourable court exceptional and peculiar circumstances that would warrant visitation to the locus in quo.
93.Furthermore, a court of law must not be called upon to carryout and or undertake investigation(s) on behalf of a party to the civil proceedings. Better still, a court of law, given its nature and in particular, the aspect where same is an impartial arbiter, same must not allow itself to be reduced into an investigative forum, by and on behalf of either of the parties to the dispute.
94.Furthermore, it is also important to underscore that where as a court of law may feel enjoined/ obliged to visit the locus in quo, such invitation cannot precede the production and adduction of evidence, in the conventional way.
95.Consequently and in this regard, I hold the persuasion that this honourable court can only visit the locus in quo after taking conventional evidence and not before.
96.At any rate and for good measure, there is also need to add a rider that such visitation will only arise and be adverted to, if after the production of evidence, there remains an aspect of the dispute that requires verification, confirmation and/or authentication, so as to enable the honourable court to fully appreciate the issues beforehand.
97.Other than the foregoing, I am not persuaded, not at the very least, that this is a matter that is deserving of visitation to the locus in quo, beforehand and at the onset.
99.For ease of reference, the court stated and held as hereunder;
100.Furthermore, Sir Udo Udoma CJ, in the case of Mukasa v Uganda (1964) EA 698 at page 700, stated and held as hereunder;
Issue Number 4Whether the subject matter ought to proceed as if same was commenced vide plaint or otherwise.
102.The applicant herein has sought that the honourable court be pleased to issue directions that the instant suit does proceed as if same were commenced and/or originated vide plaint.
103.Additionally, the applicant has also sought directions that the honourable court be pleased to order and direct that the plaintiff/respondent does attend court for cross examination on the basis of his affidavit sworn on the August 19, 2022.
104.Despite the fact that the applicant has mounted the instant application and sought for orders, in the manner articulated vide the preceding paragraph, it is common knowledge that prior to and or before originating summons can be set down for hearing, it behooves the court to issue directions.
105.For coherence, part of the directions that the honourable court is called upon to give touches on and concerns the manner in which the originating summons shall proceed and or be prosecuted. In this regard, there are two ways which are available.
106.Firstly, the parties to the suit can agree that the originating summons could be disposed of on the basis of affidavit evidence. In such a situation, the court would be called upon to issue appropriate directions, including filing and exchange of additional affidavits and written submissions, where appropriate.
107.The second option is where the parties propose to proceed vide viva voce evidence and in which case, the honourable court will be called upon to deem the originating summons and the supporting affidavit thereto as the plaint, whilst the replying affidavit shall be deemed as the statement of defense.
108.Thereafter, the parties shall be at liberty to file and exchange witness statement and further list and bundle of documents, if any, and where appropriate.
109.Obviously, where directions are given that the originating summons shall proceed vide viva voce evidence, then it shall be incumbent upon the parties and their witnesses to attend court and thereafter be subjected to cross examination in the usual manner.
110.However, I must point out that the prayer at the foot of the current application to direct that the plaintiff/respondent does attend court for purposes of cross examination on the basis of affidavit sworn on the August 19, 2022, is not only premature but misconceived.
111.Clearly, learned counsel for the defendant/applicant misconstrued and misapprehended the import of the provisions of order 37 rules 16, 17 and 18 of the Civil Procedure Rules, 2010.
112.For ease of reference, the said provisions are reproduced as hereunder;16.Directions [order 37, rule 16]The registrar shall, within thirty days of filing of the originating summons and with notice to the parties list it for directions before a judge in chambers.17.Procedure [order 37, rule 17]The day and hour of attendance under an originating summons to which an appearance is required to be entered shall after appearance be fixed for hearing in chambers of the judge to whom such summons is assigned.18.Evidence and directions upon hearing of summons [order 37, rule 18]At the time of directions, if the parties do not agree to the correctness and sufficiency of the facts set forth in the summons and affidavit, the judge may order the summons to be supported by such further evidence as he may deem necessary, and may give such directions as he may think just for the trial of any issues arising thereupon, and may make any amendments necessary to make the summons accord with existing facts, and to raise the matters in issue between the parties.
113.In my humble view, the question as to whether the plaintiff/respondent shall be called upon to attend court for purposes of cross examination on the basis of his affidavit sworn on the August 19, 2022, must await the giving of directions by the honourable court.
114.To surmise, the impugned prayer for cross examination of the plaintiff/respondent was made prematurely and is hence, same is stillborn.