Ngumi Farm Limited v Kariuki & 5 others

onto, using, taking possession of, encroaching onto, alienating, disposing of or in any other way interfering with the plainti’s quiet enjoyment and possession of the parcels land known as Makuyu/ Kimorori/ 1599, 1601, 1625, 1629, 1632, 1596, 1771, 1603, 1621, 1630 and 1609 4. That such other or further orders be granted as this court may deem t and necessary 5. That the costs of this application be provided for. 2 The application is premised on ve grounds stated on the face of it, and the supporting adavit sworn by Peter Kamande Mungai, sworn on the November 28, 2022. The plainti/applicant contends that it is the absolute and indefeasible owner of Makuyu/ Kimorori/ 1599, 1601, 1625, 1629, 1632, 1596, 1771, 1603, 1621, 1630 and 1609, the suit property and which properties, the defendants have by fraud and misrepresentation caused it to be registered in their names, without the plainti’s/applicant’s knowledge. The plainti/applicant further deponed that it is apprehensive that the defendants/ respondents are up to no good and may deal with the suit properties to its detriment. 3 The 5th defendant entered appearance and led a notice of preliminary objection in opposition to the notice motion and the whole suit on the grounds: 1. That the 5th defendants has been wrongly sued as he does not own any of the properties listed by the plainti in its documents before this honourable court. The application and plaint raise cause on Makuyu/ Kimorori/ 1599, 1601, 1625, 1629 and 1632; the 5th defendant does not own any of the aforementioned properties 2. That the plaint does not raise any legal cause of action against the 5th defendant 3. The application and the plaint led by the plainti are bad in law and an abuse of court process and should be dismissed with costs. 4 The 5th defendant/respondent Wallace Maina Michire further led replying adavit sworn on the February 2, 2023. It is his disposition that he is the owner of Makuyu/Kimorori/ Block 1/1632, and has enjoyed quiet possession of it since 2011. He further averred that the instant notice of motion application should be dismissed as it is an abuse of the court process. 5 The 2nd defendant equally opposed the suit and led a notice of preliminary objection on the sole ground that the suit herein contravenes section 7 of the Limitation of Actions Act cap 22 of the Laws of Kenya. Additionally, Kennedy Murigi Mbau, swore a replying adavit for and on behalf of the 2nd defendant as the legal representative. He deponed that his deceased father bought land parcel No Makuyu/Kimorori/ Block 1/1601, from the plainti vide a sale agreement dated October 13, 1993. That upon execution of the sale agreement, the 2nd defendant (deceased) acquired possession of the property which he had been in in peaceful occupation and use until his demise. That Joyce Wambui Mbaru, the legal representative of Francis Mbau Mungai was in possession of the said land until her demise in 2020. He deponed further that the plainti had never raised an issue for the past 29 years that the 2nd defendant/respondent (deceased) and his estate have been in occupation and as such, the application is frivolous and abuse of the court process. 6 The plainti led a further adavit sworn on the April 13, 2023 by Peter Kamande Mungai, who averred that he is one of the directors of the plainti. He maintained that the plainti/applicant is the registered proprietor of the suit properties. That in 2018, with the intentions of knowing the outstanding loan that the plainti/applicant owed to Kenya Planters Co-operative Union Ltd, they approached the Ministry of Lands and Physical Planning, who in turn wrote to the said Co-operative Union. That on November 19, 2018 the plainti received a letter from the Ministry of Lands and Physical Planning informing it that the original title deeds for the suit property are held by the said https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18042/eng@2023-06-13 2

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Co-operative Union, until the outstanding amount is paid in full. That as a result therefore, there was no way the suit properties could be transferred to the defendants, yet the original title deeds have not been released. He further deponed that this court should issue injunctive orders to conserve the suit properties. 7 In a rejoinder to the supplementary adavit, the 1st defendant led a further adavit sworn on the April 20, 2023. He deponed that the plainti/applicant is making reference to two distinct parcels of land, there being a distinction between Makuyu/ Kimorori and Makuyu/Kimorori/Block 1. He further stated that the letter attached to the supplementary adavit does not support the plainti’s case, as it has conicting information. He further averred that the plainti/applicant has failed to attach a copy of the title deed detailing the alleged charge in favour of Kenya Planters Co-operative Union Limited. That the attachments without a title deed abstract have no signicant forbearance and the suit should be struck out. There was no response by the 3rd, 4th and 6th defendants. 8 The notice of motion application and the two preliminary objections were dispensed together by way of written submissions as directed by the court on February 14, 2023. 9 The plainti/applicant through the law rm of Ombati Otieno Opondo & Awino Advocates led the written submissions on June 9, 2023 and urged the court to allow the instant application. The plainti/applicant submitted that; the plainti being the legal owner of the suit properties would like the Land Registrar Muranga to conrm the legal status of the said suit properties. 10 It was further submitted that in the year 2018, the plainti/applicant approached the Ministry of Lands to conrm the outstanding balance of a loan taken from Kenya Planters Co-operative Union who are holding the original title as security. Further, that the Ministry of Lands conrmed the ownership of the parcels of land to be the plainti/applicant and therefore no transfer could have happened as the title deed is held by the Kenya Planters Co-operative Union Ltd and the said loan has not been cleared yet. It was further submitted that the suit parcels of land belong to the plainti/ applicant and the defendants/respondents must have fraudulently acquired the titles. The plainti urged the court to grant the orders sought to protect the plainti/applicant’s interest. However, the plainti/applicant did not submit on the two preliminary objections. 11 The 1st defendant/respondent only led a further replying adavit but no submissions. 12 The 2nd defendant/respondent led his written submissions through Mutali Wanyama & Co Advocates in support of his preliminary objection and opposition to the notice of motion application. The 2nd defendant/respondent submitted that the application was defective and contravened section 7 of the Law of Limitations of Actions Act which states as follows: Any action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accord to him or if it rst accord to some persons through whom he claims to that person.” 13 It was his further submissions that the suit is time barred and that the question of limitations is a jurisdictional, one, since if the court has no jurisdiction, the preliminary objection may dispose of the suit. The 2nd plainti/respondent relied on the case of Sohanladurgadass Rajput and another v Divisions Integrated Development Programmes Co Ltd (2021) eKLR where the court quoted with approval the case of Mehta v Shah (infs) EA 321, where it had been held. The object of any limitation enactment is to prevent a plainti from prosecuting stale claims on the one hand and on the other protect a defendant from after he has lost evidence of his defence from being disturbed after a long lapse of time. The eect of a limitation enactment is to remove remedies irrespective of the merit of the parameter case”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18042/eng@2023-06-13 3

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14 The 5th defendant/respondent through the law rm of Shako & Co Advocates, led the written submissions on May 24, 2023 and raised two issues. 15 On the 1st issue of whether the court should grant the orders of injunction, the 5th defendant/ respondent submitted that there were no triable issues for the court to consider as the plainti/ applicant failed to establish all the conditions set out in Giella v Cassman Brown & Co Ltd 1973 (EA) and also Mrao Ltd v First American Bank of Kenya & 2 others (2003) eKLR. 16 The second issue was whether the suit against the 5th defendant ought to be dismissed. The 5th defendant/respondent submitted that the suit and the application are non-starters and ought to be dismissed. It was his submissions that the alleged suit property was not accurately described. He relied on the case of Esther Murigi Muhoi & 9 others v Jane Wanjiru Kamau & 2 others (2009) EKLR where the court held” “On the merits, the court nds that the ingredients for the granting of an injunctive relief herein have not been satised because of the following i …. ii …… iii. Some of the properties were not properly described. 17 The 5th defendant/objector urged the court to dismiss the suit against him as it raises no triable issues. 18 The court has carefully considered the instant notice of motion application, the two preliminary objections, the whole pleadings and the rival written submissions and nds the issues for determination are: i. Whether the two notices of preliminary objections are merited. ii. Whether the notice of motions application dated November 28, 2022 is merited. I. Whether the two notices of preliminary objections are merited 19 A preliminary Objections was described in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969) EA 696 to mean A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” The court further held: A preliminary objection is in the nature of what used to be a demurrer. it raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion....” 20 The court will rst determine whether what has been raised herein by the two defendants/ respondents meet the description of a preliminary objection as per Mukisa Biscuits case (supra). 21 The 2nd defendant/respondent in its notice of preliminary objection dated December 19, 2022 stated that the suit herein contravenes the provisions of section 7 of the Limitation of Actions https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18042/eng@2023-06-13 4

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Act, cap 22 Laws of Kenya. The 2nd defendant/respondent averred and submitted that the sale agreement in issue was entered in 1993, and this suit was led in 2022. 22 The 2nd defendant/respondent referred to several documents such as; -Sale agreement dated October 13, 1993Copy of title deedCopy of land search 23 The above documents were attached to buttress the 2nd defendant/respondent’s averments and submissions that the suit is caught by Limitation of Actions Act. However, from the description of what a preliminary objections is, the same should be based on pure points of law which arise out of the pleadings. 24 The plainti/applicant herein did not indicate in the pleadings that the 2nd defendant/objector got registered as the proprietor of the alleged suit property in 1993. For the court to ascertain the above, it has to revert to ascertainment of facts through perusal the exhibits. Therefore, the 2nd defendant/objector’s preliminary objection will entail ascertainment of facts and that is not a pure point of law. It does not meet the criteria of what amounts to a preliminary objections as stated in the Mukisa Biscuits case (supra) 25 With regard to 5th defendant’s preliminary objection on the fact that the plaint does not raise any legal cause of action against 5th defendant, it is also clear that the court will have to ascertain whether land parcel No Makuyu/Kimorori/1632 and Makuyu/Kimorori/Block 1/1632 refers to one and the same parcel of land. In doing so, the court will have to ascertain facts and thus the preliminary objection by the 5th defendant dated December 16, 2012, also fails to meet the criteria of what amount to a preliminary objection. 26 For the above reasons, the court nds that the two preliminary objections as led by the 2nd and 5th defendants/objector are not merited and the two preliminary objections are dismissed entirely. 27 However, the court has noted that the plainti has sued 2nd defendant Francis Mbau Murigi who is deceased. The replying adavit on record was sworn by one Kennedy Murigi Mbau, who is the legal representative of the estate of Joyce Wanjiru Mbau, who died on June 14, 2020. Joyce Wanjiru Mbau was the legal representative of the Estate of Francis Mbau Murigi (deceased) and she became the legal owner of the suit property through a conrmed grant dated June 25, 2003. 28 Therefore, Francis Mbau Murigi, the alleged 2nd defendant herein is deceased and no suit can stand against a deceased person. The 2nd defendant (deceased) Francis Murigi Mbau is wrongly sued and his name is hereby struck out of the pleadings since he is deceased and no suit can stand against a deceased person. The plainti ought to have sued the estate of the said Francis Mbau Murigi (deceased) and not the deceased person. It is trite law that no suit can issue against a deceased person, the Court of Appeal in Joseph Kamau Musa & others v Ereri Company Limited & others [2017] eKLR had this to say about proceedings for or against deceased persons: ….it cannot be gainsaid that persons who are deceased or persons who do not desire to be part of proceedings cannot be joined. It has been alleged that some of the 155 persons seeking to be joined are deceased. Those deceased cannot be joined unless legal representatives have been duly appointed in respect of their estates.” 29 Similarly, the court in Geeta Bharat Shah & 4 others v Omar Said Mwatayari & another [2009] eKLR when concluding that a suit against a deceased person was a nullity held: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18042/eng@2023-06-13 5

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We have no doubt whatsoever that the learned judge, in refusing to allow the application as in favour of the deceased against whom a suit was led after his demise, was plainly wrong. Indeed, in our view, there was no need for the administrators of the deceased’s estate to urge the court to do so for once the respondent also admitted that he sued a dead person, the court was duty bound to down its tools as it had no jurisdiction to proceed to hear a suit led against a person who was already dead by the time the suit was led. II. Whether the notice of motion application is dated November 28, 2022 is merited. 30 The plainti/applicant has sought for injunctive relief. This said application is anchored under order 40 rules 1, 2 & 3 of the Civil Procedure Rules. Order 40 rules 1 states: 1 cases in which temporary injunction may be granted. Rule 1. Where in any suit it is proved by adavit or otherwise — (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or is wrongfully sold in execution of a decree; or (b) that the defendant threatens or intends to remove or dispose of his property in circumstances aording reasonable probability that the plainti will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks t until the disposal of the suit or until further orders. 31 For an injunctive order to be issued, there must exist a threat or danger to the suit property being wasted or disposed of to defeat the intended outcome or decree of the court. 32 The plainti/applicant in the supplementary adavit of Peter Kamande Mungai, averred in para 3 that in the course of pursing the matter involving the suit property, had in 2018 approached the Ministry of Lands and Physical Planning to enquire about the balance of the loan owed to Kenya Planters Co-operatives Union Ltd. That on November 1, 2018, the Ministry of Lands wrote a letter to KPCU marked “Pkm1” to inquire about the debt. 33 Further that on November 19, 2018, the Ministry of Lands wrote to the plainti/applicant a letter stating “please note that we have conrmed that the original title deeds in the name of Ngimu Farm Ltd for properties Makuyu/Kimorori/Block 1/1598, 1601, 1602,1609,1610, 1611, 1615,1616, 1625 and 1630 is held by Kenya Planters Co-operative Union Limited until the payment is cleared in full”. 34 From the above averments, it is evident that the discovery herein was done in 2018. The suit herein was led in 2022, and it is evident that injunctive orders are sought to avert immediate danger to property by sale or other disposition (see the case of Noor Mohammed Johnmohammed v Kassam Ali Virji Madhani (1953) 20 CRK 8 where the court held To justify temporary injunction, there must be evidence of immediate danger to property by sale or other disposition”. 35 The plainti/applicant has not deponed that the defendants/respondent herein are intending to sell the suit properties. The plainti/applicant has not proved any of the incidents set out in order 40 rule 1 of the appeals which the plainti/applicant has anchored its application upon. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18042/eng@2023-06-13 6

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These conditions are that any property in dispute is a suit in danger of being wasted, damaged, or alienated by any party to the suit or is wrongfully sold, in execution of a decree” 36 In the instant suit, the plainti/applicant is claiming that the defendants/respondents acquired the suit properties fraudulently but it has not alluded to the fact that the defendants/ respondents are threatening to waste, damage or alienate the suit properties aforementioned. 37 Having found that there is no threat or danger over the suit properties, this court nds that there is no justication for seeking injunctive orders and therefore the court will not dwell on whether the conditions set out in Giella v Cassman Brown (supra) have been established. 38 The application too having been anchored under sections 1A,1B & 3A, of the Civil Procedure Act, the court takes refuge in section 3A of the said act which grants the court powers to issue orders that are necessary for the end of justice. 39 The necessary orders herein are therefore to have this notice of motion application dated November 28, 2022, dismissed entirely as it is not merited. 40 The parties should prepare this suit for hearing of the main suit expeditiously so that the issues in dispute are heard and determined at once. 41 For the above reasons the court makes the nal ndings as follows: i. The two notices of preliminary objections by the 2nd and 5th defendants/objectors are dismissed entirely. ii. The 2nd defendant Francis Mbau Murigi (deceased) is struck out of the suit herein as he is deceased person. iii. The notice of motion application dated November 28, 2022 is found not merited and it is hereby dismissed entirely with costs to the 1st and 2nd defendants/respondents herein. iv. The suit to be set down for hearing expeditiously. v. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 13TH JUNE 2023. L. GACHERU JUDGE Delivered online in the presence of Mr Awino- for Plainti/Applicant Mr Ndungu- H/B for G.M. Muhoro for 1st Defendant/Respondent Mr Mutali- for 2nd Defendant/Respondent/Objector Absent- 3rd Defendant/Respondent Absent- 4th Defendant/Respondent Mr Thuo- for 5th Defendant/Respondent/Objector Absent – 6th Defendant/Respondent. Joel Njonjo – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18042/eng@2023-06-13 7

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L. GACHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18042/eng@2023-06-13 8

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