REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC CASE NO. 142 OF 2007 WINFRED PENINA MUTHUBI & FRANCIS KANGERE MUCHIRI (Suing as Representatives and Administrators of the Estate of JOSEPH KANGERE MUTHUBI (Deceased).....................................PLAINTIFFS VERSUS KENYA COMMERCIAL BANK LIMITED................................1 ST DEFENDANT NANAK INVESTMENTS LIMITED............................................2 ND DEFENDANT JAMES AMALEMBA ATEMA....................................................3 RD DEFENDANT THERESA SALASYA ATEMA......................................................4 TH DEFENDANT SAM KOKACH................................................................................5 TH DEFENDANT BERTHA KOKACH........................................................................6 TH DEFENDANT JOSIAH KIPKEMBOI KIPLAGAT..............................................7 TH DEFENDANT JOSEPH WANJALA.......................................................................8 TH DEFENDANT CHRISTINE WANJALA.................................................................9 TH DEFENDANT LILIAN WANJIRA.......................................................................10 TH DEFENDANT HON. DR. PAUL OTUOMA.........................................................11 TH DEFENDANT CELINA OTUOMA.......................................................................12 TH DEFENDANT FLORENCE MWAI.....................................................................13 TH DEFENDANT NEELTJE ROSENSTOK............................................................14 TH DEFENDANT WINNIE WANGARI SCHULTE KELLINGHAUS.................15TH DEFENDANT FRANCIS OFAFA........................................................................16 TH DEFENDANT RULING The 2nd Defendant filed the preliminary objection dated 27/6/2019 while the 3 rd to 16th Defendants filed the preliminary objection dated
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4/10/2019 claiming that the suit had abated by operation of the law and that the Plaintiffs’ claim against the 2 nd to 16th Defendants was timebarred. The gist of both preliminary objections was that the Plaintiffs did not have capacity to institute the suit against the 2 nd to 16th Defendants and further that the suit was time- barred as against these Defendants. Parties filed submissions which the court has considered. The 2 nd Defendant submitted that the original Plaintiff Mr. Joseph Kangere Muthubi died on 26/11/2013 and a limited grant of letters of administration ad litem was issued by the High Court to his personal representatives on 14/10/2014. The 2 nd Defendant contended that the personal representatives of the late Joseph Kangere Muthubi were required to file a formal application to continue the proceedings within a year of his death failing which the suit would abate under Order 24 Rule 3 of the Civil Procedure Rules. The 2 nd Defendant further submitted that the suit alleging fraud on the part of the 2 nd Defendant’s director, Mr. Manmohan Chawla, should have been instituted not later than October 2000. The 3rd to 16th Defendants also relied on Order 24 Rule 3 of the Civil Procedure Rules in urging that any personal representative intending to be made a party to an existing suit that survives a deceased party must make an application for substitution within a year of the Plaintiff’s death. The 3rd to 16th Defendants submitted that the grant of letters of administration ad litem were issued to the Plaintiff on 14/10/2020 and urged that the personal representatives should have made an application for substitution by 26/11/2014 which they never did. These Defendants contended that 6 years had lapsed from the time the Plaintiff died without steps being taken to substitute him in the suit. They contended that the court lacked jurisdiction to determine this suit for it had already abated. The 3 rd to 16th Defendants contended that the 2 nd Defendant undertook the development of the maisonettes on the Suit property in 1993 with the deceased Plaintiff’s knowledge since the two parcels of land are adjacent to each other and are only separated by a perimeter wall. The 3 rd to 16th Defendants maintained that the maisonettes were developed more than 20 years ago and maintained that the Plaintiff’s personal representatives had always occupied and resided on the Suit property and were therefore aware of the development of the maisonettes. The Plaintiffs submitted that their application for substitution was filed on 13/11/2014 before a year had elapsed after the death of Joseph Muthubi Kangere. They maintained that the personal representatives of the deceased Plaintiff had capacity to institute a suit against any other person on behalf of the estate of the deceased. The Plaintiffs contended that in a preliminary objection there was no room to ascertain facts as the Defendants seek to have done in this instance. The Plaintiffs contended that in order to determine whether their claim against the 2 nd to 16th Defendants was time barred factual issues would need to be ascertained. This file has had the misfortunate of getting lost and being reconstructed on more than one occasion. The court notes from the typed proceedings of 27/4/2017 that on that day the Plaintiff’s advocate Mr. Mwangi Muturi informed the court that there was an application dated 13/11/2014 pending which sought to substitute the Plaintiff. The court record shows that the court allowed the application as prayed. Unfortunately, the Plaintiffs did not deem it fit to file an affidavit and produce a copy of the application for substitution as well as the order extracted to prove to the 2nd to 16th Defendants that they did apply for substitution and that the court granted an order for the substitution of the deceased Plaintiff. The court is inclined to give the Plaintiffs the benefit of doubt that they made an application within time and were properly substituted in the suit in the place of the original Plaintiff who died in 2013. The issue that falls for determination is whether the suit against the 2 nd to 16th Defendants is time- barred. The original suit was filed in February 2007 against Savings and Loans Kenya Limited seeking to compel the bank to release the original title deed over L.R. No. 330/60 to the Plaintiff on the basis that the loan sum secured by the title had been repaid. The plaint was amended in May 2011 and Kenya Commercial Bank Limited was substituted as a Defendant. It is not clear what happened thereafter and whether the plaint was ever amended again after the demise of Joseph Kangere Muthubi in 2013. This difficulty is borne out by the fact that the court file went missing and had to be reconstructed. The next amendments came in March 2018 when the Plaintiffs joined the 2 nd to 16th Defendants to the suit in which they sought a declaration that the subdivision by the 2 nd Defendant of L.R. No. 330/60 to create L.R. No. 330/927 and L.R. No. 330/928 was illegal and void and that the conveyances in respect of L.R. No. 330/928 hived out of L.R. No. 330/60 were fraudulently obtained and should be cancelled and the original title over L.R. No. 330/60 restored. The court notes from the list of documents the 3 rd to 16th Defendants filed that the list contains leases dated 3/5/1994 in respect of the maisonettes developed on L.R. No. 330/928. Based on the documents the 3 rd to 16th Defendants filed by the 3rd to 16th Respondents including the leases, the court agrees with the 3 rd to 16th Defendant that the Plaintiffs’ claim is statute barred as it was filed almost 24 years after the 3rd to 16th Defendants acquired interests in the Suit property. The late Joseph Kangere Muthubi should have filed a suit against the 2nd to 16th Defendants to recover the land known as L.R. No. 330/928 which was hived out of L.R. No. 330/60 within twelve years of the date of subdivision and transfer of the resultant portions of the land to third parties. The suit against the 2nd to 16th Defendants is dismissed for being time- barred. The Plaintiffs will pay costs of the suit to the 2 nd to 16th Defendants. Delivered virtually at Nairobi this 7th day of October 2020. K.BOR JUDGE In the presence of:Ms. M. Nthiga holding brief for Mr. Muturi Mwangi for the Plaintiffs Ms. Winfred Nzuki for the 1st Defendant
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Ms. Diana Mulei for the 2nd Defendant Mr. Mitchell Kitonyi for the 3rd to 16th Defendants Mr. V. Owuor- Court Assistant
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