REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL SUIT NO.15 OF 2013

MARY WANGARI MWANGI .................................PLAINTIFF

-VERSUS-

                                        PETER NGUGI MWANGI T/A MANGU BUILDERS LTD…….........1ST DEFENDANT

          DANIEL KIPLANGAT KIRUI ……………........2ND DEFENDANT

                  DALICE INVESTMENTS LTD……………………3^RD DEFENDANT 

                    COMMISSIONER OF LANDS……………………4^TH DEFENDANT

 RULING

1.The Plaintiff commenced this suit by way of a plaint dated 8^th October, 2010 and sought,inter alia, the following orders:

(i)    A declaration that the plaintiff is the legal owner of L.R Naivasha Municipality Block 5/225 (hereinafter referred to as the suit property) and subsequent orders for registration of the same in her name

(ii)   Nullification and cancellation of title documents to the suit property in the name of Mangu Builders and Dalice Investments Ltd

(iii)   A permanent injunction restraining the defendants jointly and severally by themselves, their servants, employers and or agents from registering any dealings on, dealing in, disposing off, transferring and or interfering with the plaintiff's peaceful use, enjoyment, occupation and or dealing in the suit land or any part of, in any manner detrimental to the plaintiff

(iv)   Costs   

2. Contemporaneously with the plaint, the Plaintiff filed a chamber summons seeking interim orders that the respondents by themselves, their servants, employees and or authorized agents be restrained from selling, dealing in, disposing off, transferring and or interfering with the plaintiff's peaceful use, enjoyment, occupation and or dealing in the suit land or any part of, in any manner detrimental to the plaintiff applicant pending the hearing and determination of this application.

3. On 12^th October, 2010 the plaintiff amended her plaint to include a prayer for interim injunction. It is this amended plaint that is the subject of challenge by the two applications dated 31^st May, 2011 and 5th July, 2011.

4.  On 31^st May, 2011 the 1st defendant filed a motion seeking to have the amended plaint dated 12^th October, 2010 struck out on the following grounds-

(i) That the amended plaint does not disclose any reasonable  course of action against the 1^st defendant

(ii) That the whole suit is an abuse of the court process.

(iii) That the plaint has no merits deserving a full trial.

(iv) That this suit relates to two other claims between the  parties herein on the same subject matter being Nakuru HCCC NO. 272 of 2009 and Nakuru HCCC NO. 48 of 2006.

(v)  That the substratum of the amended plaint as against the 1^st defendant is so weak that it cannot be cured.

(vi)That the matters in issue in previous proceedings cannot be reopened in this case and be heard as though this is a fresh matter.

5. The application is supported by the affidavit of Peter Ngugi Mwangi, the 1^st defendant herein. He depones that the plaintiff has never been the proprietor of the suit land: that he had found himself involved in matters relating to the suit land through the actions of the plaintiff who had decided to fraudulently register the suit land under his business name  Mangu Builders without his authority or consent: That  he has no interest in the suit land and neither is he a proprietor of the same therefore the inclusion of his name in the suit and the reliefs sought in the plaint have no bearing on him as none have been sought against him.

6. The 2^nd and 3^rd respondents filed a  similar application on 5^th July, 2011 seeking  that the amended plaint dated 13^th October, 2010 (which I will  take to be the amended plaint dated 12^th October 2010) be struck out with costs to the 2^nd and 3^rd applicants on the grounds that :

(a)   That the amended plaint and the plaintiff's action is abuse of the process of court

(b)   That the plaintiff's suit is vexatious, frivolous and scandalous

(c )   That the plaintiff's suit lacks merit and cannot stand trial

(d)   That the suit will prejudice, embarrass and delay the fair

trial.

7. The application is supported by the affidavit of Daniel Kiplagat Kirui sworn on 1^st June, 2011. He depones that the 3^rd defendant is the owner of the suit land having been allotted the same in 1993: that the 2^nd applicant had engaged the plaintiff who had presented herself as an estate agent to obtain a lease over the suit property but she instead obtained a title in her name which title was found to be fraudulent by the Ministry of Lands and subsequently cancelled.

8. The 4th defendant did not enter appearance in this suit.

9.The two applications are opposed. The Respondent through a replying  affidavit sworn on 19^th  September, 2010 depones that  her  amended  plaint disclosed a reasonable  cause  of  action which raises issues  of  fraud  perpetrated by the  Defendants, is not  an abuse of the  court process and  deserves a full trial: that the  existence  of the two suits i.e  Nakuru HCC No.272 of 2009 and  Nakuru HCC No.48 of  2006 is  proof that  there  are  issues that  need a full trial, which the  defendants  wished to  avoid: That Nakuru HCC 272 of  2009 was  withdrawn  by the  plaintiff and the  2^nd and 3^rd Defendants had failed to  prosecute HCC No.48 of  2006 giving her a right to file and  proceed with her  own suit;  That the  1^st  Defendant in  his  affidavit  admits  that the  plaintiff  is the registered owner of the suit property as  the title had initially been registered in  her name but the same was subsequently  transferred back to the  name  of  Mangu  Builders: That   the  1^st  Defendant is  colluding  with the  2^nd  and  3^rd Defendant to  defraud  the  plaintiff  of   her  property even  after the  1^st  Defendant agreed  with  the  plaintiff  to  convert Mangu Builders into a Limited Liability company where they hold equal shares: that the 2^nd and  3^rd  Defendants  have  never  been  owners  of the suit   land and they obtained the  title  document through fraudulent means: That   the  2^nd and  3^rd  Defendant  did  not apply  for the  suit property  and  their allotment  letters  are for different Land parcels and perusal of  the  Municipal Council of Naivasha records will reveal that the  plaintiff is the  registered  owner of the suit property. She urged the court to dismiss the two application with costs.

10.An earlier application by chamber summons dated 8^th October, 2010 seeking orders of injunction, was heard and determined by Ouko J. He did not grant the orders sought but  instead dismissed the application with costs on the  grounds that the applicant( plaintiff) had failed to establish a prima facie case. He made the following observations: The 1^st defendant had disowned the lease registered in his business name stating that it was acquired fraudulently which title had also being declared a forgery by the Ministry of Lands: Nakuru HCCC No. 272/ 2009 raised similar issues to those in the instant suit: The documents presented in support of the instant application were the same used in an application dated 1^st October, 2009 and that although the present applicant was not a party in the other suit and investigations carried out by the police did not find her culpable, he was of the view that the allegation of collusion and fraud against the respondents met the threshold of a prima facie case.

11. Directions were taken that the two applications be  disposed of together by way of written submissions. The 1^st ,  2^nd and 3^rd defendants filed their written submissions within the stipulated period but the plaintiff/respondent filed her written submissions four days after the expiry of the 30 days granted by this court. I shall not consider her submissions alongside the other submissions.

12. In his submissions the 1^st defendant rehearsed what was stated in his grounds and supporting affidavit of his application dated 31^st May, 2011. He relied on the following authorities which l have taken into consideration

1.    Samuel KarugaKoinangev.Bellion  Bank  Ltd  Nairobi ( Millimani) High  Court, Civil Case  No.9511 of  2000  Hewett J,  on 1  November, 2000)Citedby G.V Odunga in his book  Ondung’s  Digest on  Civil  Case  Law  and  procedure  Volume 1,2^nd  Edition  at  page 3.

2.    United Insurance Company Ltd v. Kerano Marwa Musembi Ndolo &  Company Advocates, Kisumu High Court Civil Case  No.409 of 2000: LLR(Birech  CA  on 4^th  September, 2001)as cited  at page 4 in Ondung’s Digest(supra)

3.    Kenya Re-Insurance  Co-operation v. Adda Okello Owuor  Kisumu High court  Civil  Appeal No.17 of  2005 Warsame, J.

13. The 2^{nd   and 3rd} defendants also rehearsed their grounds and replying affidavit and relied on the following authorities which I have equally read and considered.

1. Mpaka Road  Development  Co  Ltd  v. Abdul  Gatur Kawa  T/A An Kapuri   Paw Coffee  House  HCCC No. 318 of  2000 cited in Kenya  Power &  Lighting  Company  Ltd  v American  Life  lnsurance  Company ( K) Ltd  (2005) eKLR

2. Trust  Bank  Limited  Vs  Amin  & Company  Ltd  &  Another  (2000) KLR 164

3. Margaret  Mumbi Kagiri v. Kagiri Wamairwe & 3  others  Civil Appeal No.181 of  2002  Nyeri

4. Solomon  Kutundu Munywoki &  2  others  Vs  Par  Towers  Limited  & 2  others( 2006) eKLR

5. Japhet Ogendo Owuar v.Akuom O Leonard & Co  Auctioneers &  4  others ( 2006) eKLR

14. After reading the pleadings and submissions by counsels for both parties, I find that the following are the issues for determination:

(i)    Is the suit vexatious, frivolous and scandalous?

(ii)   Is the suit an abuse of the court process?

15. To get a clearer picture of the history of this matter l took  the liberty to call for the following files; Nakuru HCCC

NO. 272 of 2009, Nakuru HCCC NO. 48 of 2006 and Nakuru HCCC 50 of  2006.

16. In  Nakuru HCCC NO. 272 of 2009, an application dated 1^st October,2009 to restrain the defendants from selling, alienating, disposing of dealing or interfering with the applicants title to the suit land was dismissed with costs. According to the court record, the court later ordered that investigations be carried out after the plaintiff (1^st Defendant in the current suit) denied having filed the suit or having an interest in the suit property. Investigations revealed that the plaintiff did not file the suit himself as his signature was found to have been forged and the court left it to the defendants to decide how they wished to proceed with the suit.  No further action was taken. This matter is still pending for hearing and determination.

17. Nakuru HCCC 48 of 2006 was withdrawn by the plaintiff and is therefore spent.

18.In Nakuru HCCC NO. 50 of 2006, the plaintiff in the current suit has been sued by James Kiarie Kimemia who is seeking a refund of money paid by him to the plaintiff for the purchase of the suit property. This suit is still pending for hearing and determination.

19.  Order 15(1) of the Civil Procedure Rules provides:-

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

(a)   it discloses no reasonable cause of action; or

(b)   it is scandalous, frivolous, or vexatious; or

(c)   it may prejudice, embarrass or delay the fair trial            

of the action; or

(d)   it is otherwise an abuse of the process of court,and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

20. What was frivolous and vexatious was defined by  Ringera  J  in the case  of  Trust   Bank  Limited  v Amin   Company  Ltd &  Another  (2000) KLR 164 as:

“A  pleading  or  an  action  is  frivolous when  it is without  substance or  groundless  or  fanciful and is  vexatious  when it  lacks  bona fides  and  is hopeless or  offensive and tends to cause the  opposite  party unnecessary anxiety, trouble  or  expenses. A pleading which tends to  embarrass or  delay fair  trial is a pleading which is ambiguous or  unintelligible  or  which states immaterial matters and raises  irrelevant  issues which  may involve  expenses which will prejudice  the fair trial  of  the action”

21. It is common ground that the suit property has been the subject of a long protracted dispute between the plaintiff, 1^st ,2^nd and 3^rd defendants and other persons not  parties in this suit. The plaintiff, 1^st Defendant and another were jointly charged in a criminal case with the offence of making a document without authority. It is also common ground that the suit property is not registered in the name of the plaintiff. In Nakuru HCCC 272 0f 2009 and in the current suit, the 1^st Defendant, (plaintiff in 272) in whose business  name the title was registered denied instituting that suit, being a proprietor or having any interest in the suit property stating that  the plaintiff fraudulently registered the suit property in his name. In my view, I do  not  see  what reasonable cause of action the plaintiff has against the 1^st  Defendant who has  disowned the very  title  the   plaintiff lays a  claim upon.

22. As regards the 2^{nd and} 3^rd defendants, the 3^rd defendant's title has been recognized by the Lands Office and the earlier title issued to the 1^st defendant discredited by the very  authority that  issued  it. The  same  authority went ahead to  confirm that the  Documents  used to  process  the title  in the name of  Mangu builders  did not  emanate  from the  Lands  office,  that  they were  a forgery. Although the applicant was not a party in Nakuru HCCC 272 0f 2009, the issues raised in the instant suit are the same and the documents used to support the pleadings similar.

23.The main issue for determination in all the suits, is who is holding the  genuine lease to the suit property. The holder of the lease in the name of Mangu builders has disowned that lease  and admits that the title was fraudulently processed and subsequently registered in his business name. The lands office  have also  discredited that lease. This is the same lease that the plaintiff now wants declared  legal and registered  in her  name. I find that these issues have already been addressed.  In my view continuing to entertain the plaintiff’s claim against the  2^nd  and  3^rd  Defendants will  not only be  vexatious, frivolous and  scandalous  but  also an abuse of the court process. See the case of Japhet Ogendo Owuor v Akuom O Leonard & Co  Auctioneers &  4  others ( 2006) EKLR  and   Section 7 of the Civil Procedure Act 2010  which states as follows:-

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

24. I have  looked  at this  suit from all  angles  to see if  life can be injected into  it but is so weak that it is beyond redemption and is incurable. It cannot be redeemed even with amendments.

 See the case of  DT Dobie & Company (Kenya) Ltd v. Muchina,the Court of Appeal observed:-

…… “The court should aim at sustaining rather than terminating a suit. A suit should only be struck out if it is so weak that it is beyond redemption and incurable by amendment. As long as a suit can be injected with life by amendment, it should not be struck out.”

25. For the foregoing reasons I find the applications dated  31^st May 2011 and 5^th July 2011 have merit and allow both applications  with costs.

Dated signed and  delivered at  Nakuru in  open  court this 20^thday  of   December 2013 .

L  N WAITHAKA

JUDGE

PRESENT

Mr Otieno  holding brief  for  MrGai  for  Plaintiff/Applicant

Mr Kipkoech holding  brief  for   Mr   Kurgat  for  1^st  defendant

Mr Murithi  holding brief  for  2^nd& 3^rd  defendants

Emmanuel   Maelo: Court  Assistant

L N WAITHAKA

JUDGE