Mwangi (Suing as the Administrator of the Estate of Mwangi Muhoro) v Wambugu

issued on August 28, 2001 where it was held that the transfer of IR No 9271/1 to the 4th defendant would be cancelled and the said property be subdivided between Mwangi Muhoro who was to get 290 acres, Willie Kiritu who was to get 149 acres and Lawrence Mwangi who was to get 28 acres with Arthur Wambugu getting 121 acres. That Willie Kiritu appealed against the said judgement and the judgement on appeal was delivered on November 12, 2010. The Court of Appeal upheld the judgement of the High Court and awarded half of the costs of the counterclaim to the defendants. That the deputy registrar of the High Court issued a consolidated decree on July 1, 2016 and after the issuance of the said decree, Mwangi Muhoro settled on LR No 9271/3 (IR No 9271/1/1) measuring 290 acres, Arthur Wambugu settled on LR No 9271/4 (IR No 9271/1/2) measuring 121 acres, Willie Kiritu settled on LR No 9271/5 (IR No 9271/1/3) measuring 147 acres and Lawrence Mwangi on LR No 9271/6 (IR No 9271/1/4) measuring 25 acres. 4 That despite the valid court decree, the defendant fraudulently acquired a title for LR No 9271/9 measuring 77.88 Ha and the extra 43.44 acres are to be excised from the plainti’s land thereby signicantly reducing its size. That the defendant’s actions are intended to prevent the plainti from enjoying her property rights. That between the months of February and March, the defendant had trespassed onto the plainti’s property in the company of a surveyor with the intention of subdividing it. That it was in the interest of justice that the court allows the application as the plainti stands to suer substantial loss if the orders sought are not granted. 5 The application is supported by the adavit of the plainti who deposed that she is the administrator of the estate of the late Georey Mwangi Muhoro. She then reiterated the grounds on the face of the application. 6 The application dated April 5, 2023 sought the following prayers; a. That this honourable court be pleased to issue an order of stay of proceedings in the case serialized as NAKURU CM ELC No 184 OF 2022 Arthur Wambugu Muiga vs Thomas Willingtone Ngeno & 11 others pending the hearing and determination of this case. b. That this honourable court be pleased to issue an order that the le serialized as NAKURU CM ELC No 184 OF 2022 Arthur Wambugu Muiga vs Thomas W'lingtone Ngeno & 11 others be consolidated with this le and that they be heard together by the Environment and Land Court. c. That costs of this application be in the cause. 7 The grounds on the face of the application were that the plainti is the administrator of the estate of Mwangi Muhoro and that she instituted the present case vide a plaint dated March 21, 2023 to protect the interests of his estate. The plainti is seeking in her plaint for the orders that; An order of permanent injunction restraining the Defendant herein, his employees, servants and or agents from further dealing and/or trespassing into the Plainti’s land known as L R No 9271/3 (1 R No 9271/1/1/), An order declaring that the Defendant's Title for Land Reference No. 9271/9 - measuring approximately 192 acres was issued fraudulently and the Defendant is only entitled to 121 acres of LR 9271/1, An order directing the Land Registrar to cancel the Certicate of Title issued to the Defendant for all that parcel of land known as Land Reference No. 9274/9 measuring 77.88 Ha or 192.44 acres and in its place issue the Defendant with a Certicate for 121 acres, Costs of the Suit and interest. 8 The plainti reiterated that she is seeking to enforce her rights over LR No 9271/3. That the defendant led Nakuru CM ELC No 184 of 2022 between Arthur Wambugu Muiga vs Thomas Willingtone Ngeno & 11 Others against her tenants vide the plaint dated November 18, 2022 and sought the following prayers; An order for declaration of rights in respect to the ownership of the parcel of land https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18569/eng@2023-06-29 2

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known as IR 246235 L.R No. 927/9 measuring approximately 77.88 Ha, situate at Rongai within Nakuru County, A permanent injunction restraining the Defendants by themselves, their agents, servants and other persons acting at their behest from trespassing, planting, cultivating, ploughing and grazing their livestock or in any other way interfering with the said Plaintis parcel known as IL R 246235 L R No 927/9 measuring approximately 77.88 Ha situate at Rongai within Nakuru County and costs of this suit together with interest thereon at such rate and for such period of time as this honourable court may deem t to grant. That the Defendants in the above-mentioned case were all tenants of the Plainti/Applicant herein having leased portions of land from the larger parcel known as LR No 9271/3 ( R No 9271/1/1/ that belonged to the Estate of Mwangi Muhoro. That this matter will determine which portion of land belongs to the Plainti/Applicant and which one belongs to the Defendant/Respondent and therefore tender a nal determination as to the boundary of each party's land. That this court should stay the said proceedings so that it can hear the matters on merit. That if the two suits proceed simultaneously, the court will reach two conicting decisions. That where there are common questions of law or facts in actions having sucient importance in proportion to the rest of each action it would desirable that the matters should be disposed of at the same time and consolidation ordered. That the essence of consolidation is to facilitate the ecient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. 9 The application was supported by the adavit of Lawrence Macharia Karanja counsel for the plainti who reiterated the grounds on the face of the application and deposed it is in the interest of justice that the court grants the orders sought by the plainti. 10 In response to the application dated March 21, 2023, the defendant led a replying adavit sworn on March 5, 2023 and led on April 6, 2023. He deposed that the Certicate of Conrmation of the Grant issued on June 2008 at the Nakuru High Court, Succession Cause No.203 OF 2006 (Estate of the late Mwangi Muhoro-deceased) and from the list of the deceased's assets, the subject parcel of land (1 R 17573/12 LR No 9271/1) or any shares thereof are not among the deceased's assets. That it is very clear that the Plainti is not the Administrator of the deceased's estate in so far as land parcel No I R 17573/12 LR No 9271/1 or any shares thereof are concerned and does not therefore have locus to sue with respect to the suit property. That notwithstanding that, it was clear that that land parcel No I R 17573/12 LR No 9271/1 measuring 581 acres (after deducting 7 acres for roads) was to be shared among Arthur Wambugu Muiga, Lawrence Mwangi Muya, Willie Kiritu Kigotho and Mwangi Muhoro in accordance with each person’s capital contribution. That they contributed Kshs 160,000/ = which would have entitled him 192.274 acres, Mwangi Muhoro 192.274 acres, Willie Kiritu Kigotho 174.3 acres and Lawrence Mwangi Muya 22.15 acres. That during subdivision, the surveyor took into consideration where each contributor was occupying and that he had not trespassed on anyone’s parcel of land. He then sought that the plainti’s application be dismissed. 11 The plainti then led a supplementary adavit sworn on April 20, 2023 and led on April 25, 2023. She deposed that she had the locus standi to institute the present suit on the basis that she was the administrator of the estate of Mwangi Muhoro and that the only reason that the suit property did not form part of the deceased’s estate was because it was not free property as there was an active case in court challenging its proprietorship. That after the court decreed that Mwangi Muhoro was entitled to 290 acres then it automatically formed part of his estate. That the mode of distribution adopted by both the High Court and the Court of Appeal was as per the capital contribution of the parties. That the said mode of distribution was derived from the minutes of a meeting where it was recorded that W. Kiritu was to get 149 acres, I.M Munyua was to get 28 acres, Mwangi Muhoro was to get 290 acres and A Wambugu was to get 121 acres. That each of the parties signed against their shares and the judgement by the Court of Appeal has never been set aside. She reiterated that the Court of Appeal https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18569/eng@2023-06-29 3

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did not set aside the judgement of the High Court but only awarded costs to the defendant on the basis that the counterclaim had partially succeeded. That to date the suit property has never been subdivided as per the court’s decree and that the defendant was using this as an opportunity to solely subdivide the land and award himself a portion that was bigger than what the court had awarded him. That it was in the interest of justice that the court intervenes and issues orders that the suit property be protected pending the hearing and determination of this suit. 12 The defendant then led a Notice of Preliminary Objection dated April 20, 2023 on the same date which was on the following grounds; a. That the plainti Esther Njeri Mwangi (Suing as the Administrator of the Estate of Mwangi Muhoro) has no locus standi to institute and sustain this suit for and on behalf of the Estate of Mwangi Muhoro in so far an it relates to LR No 9271/3 (1 R No 9771/1/1) b. That the institution of this suit by the Plainti is in violation of section 34 of the Civil Procedure Act which states. (1) c. All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. That due to lack of capacity to institute and sustain this suit on the plainti’s part and owing to the mandatory provisions of section 34 (1) of the Civil Procedure Act, this suit is incompetent and the court has no jurisdiction to hear or hear or even entertain it. 13 Thereafter the defendant led a replying adavit to the plainti’s application dated April 5, 2023. The said replying adavit was sworn by the defendant on May 3, 2023 and led on the same date. He deposed that none of the parties in Nakuru CMC ELC No 184 of 2022 between Arthur Wambugu vs Thomas Willingtone Ngeno & 11 Others had not applied for transfer of the case for consolidation of the two suits. He also deposed that Section 18 of the Civil Procedure Act is clear that only parties to the suit needs to be transferred can apply for the said transfer. That Esther Njeri Mwangi is not a party to the case before the subordinate court and therefore lacks capacity to apply for transfer of the case to this court. That the other advocates in the lower court case were not served with the said application and they are not aware that an application has been led to transfer and consolidate the said suit with the present suit. That for there to be transfer and consolidation of suits, the parties and issues for determination have to be identical. That in the present matter the issues are dissimilar on facts and issues of law and the rights and reliefs sought are dierent. That the subject matters of both suits are dierent and so the said application should be dismissed with costs. 14 The plainti led her submissions dated April 20, 2023 on April 25, 2023 while the defendant led his submissions dated May 3, 2023 on May 4, 2023. 15 The plainti in her submissions gave a summary of the facts of the case and submitted on whether she has the locus standi to le the suit, whether she is entitled to the orders sought and whether costs should issue. 16 On the rst issue, the plainti submitted that she is the widow of the deceased and the administrator of his estate. She also submitted that LR No 9271/3 (I R No 9271/1/1) did not form part of his estate at the time of distribution by the probate and administration court on the basis that it was not free property because there was an active matter pending in court. The plainti further submitted that the deceased’s assets listed in the petition for letters of administration were all free properties that formed part of his estate at the time but later, the High Court and the Court of Appeal pronounced that LR No. 9271/1 was to be subdivided among the parties. That therefore given that she was an administrator https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18569/eng@2023-06-29 4

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of the estate of the deceased, she has the competency to bring any claim regarding the property for grant of the said order. 17 On the second issue, the plainti relied on the cases of Giella vs Cassman Brown & Co. Ltd [1973] EA 358 and Nguruman Limited vs Jan Bonde Nielson & 2 Others [2014] eKLR and submitted that she had established a prima facie case with a probability of success given the previous determinations by the court in HCC No 165 of 1974 and the Court of Appeal in Civil Appeal No 127 of 2004. She then reiterated the contents of her supporting adavits and supplementary adavit on the mode of distribution of Lr No 9271/1 and submitted that she will suer irreparable injury that cannot be adequately compensated by an award of damages if the orders sought are not granted. The plainti also relied on the cases of Paul Kipchirchir Kogo vs Frank Kimeli Tenai [2018] eKLR, Banis Africa Ventures Limited vs National Land Commission [2021] eKLR and submitted that the court should grant the orders of temporary injunction pending the hearing and determination of this suit. 18 The defendant in his submissions addressed the preliminary objection dated April 20, 2023. He submitted that it was not disputed that the plainti led the present suit on behalf of the estate of Mwangi Muhoro and that it was also not disputed that the suit property does not appear in the certicate of conrmation of grant issued on October 9, 2008 as the assets of the late Mwangi Muhoro (deceased). The defendant further submitted that the plainti can only sue with regard to the deceased assets listed in the certicate of conrmation of grant and that she has not indicated why she did not apply for rectication of the said grant to include the suit properties. The defendant relied on the cases of Wambugu s/o Gatimu vs Stephen Nyaga Kimani [1992] 2 KAR 292, John Kasyoki Kieti vs Tabitha Nzivulu Kieti & another Machakos HCC No 95 of 2001 among other cases and sought that the court allows ground No. 1 on his preliminary objection and nd that the plainti has no locus standi to le the present suit. 19 The defendant further submitted that his second ground on the preliminary objection was based on the mandatory provisions of Section 34(1) of the Civil Procedure Act. The defendant submitted that the plainti’s claim in the plaint is based on previous litigation in Nakuru HCC No 165 of 1974 between Mwangi Muhoro vs Willy Kiritu & 3 Others and the resultant appeal which could only be resolved in the said suits and not by ling of a fresh case. The defendant relied on Section 34 of the Civil Procedure Act, the cases of Nakuru HCC No 28 of 2017 Charles Ngare Karaya vs Florence Muthoni & Sarah Njoki Munge t/a Sanjomu Auctioneers, Nakuru HCC No 170 of 2010(OS) DML vs ML alias EL, Nakuru HCC No 4 of 2014 Kepue ole Ngweta vs Karino Ole Meshunko & Sarah Njoki Munge t/a Sanjomu Auctioneers among other cases and sought that his preliminary objection be allowed as prayed. Analysis and determination 20 Before addressing the plainti’s applications dated March 21, 2023 and April 5, 2023, I will rst address the defendant’s preliminary objection dated April 20, 2023. 21 The defendant’s preliminary objection is on two grounds. Firstly, that the plainti does not have the locus standi to institute the suit on behalf of the estate of Mwangi Muhoro in so far as it relates to LR No 9271/3 (I R No 9271/1/1) and secondly that the institution of the suit violates the provisions of Section 34 of the Civil Procedure Act. 22 The plainti admits that the suit property was not indicated in the certicate of conrmation of grant because at the time of conrmation, there was an active litigation over the suit property. The plainti argues that since the court held that the suit property belonged to the estate of Mwangi Muhoro and even though it was not included in the certicate of conrmation of grant, as the legal representative of his estate, she had the authority to le a suit with respect to it. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18569/eng@2023-06-29 5

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23 The plainti argued that the decree issued by the court on July 1, 2016 indicated that LR No 9271/1 was to be subdivided and Mwangi Muhoro was to be given 290 acres. It is not disputed that the plainti is the legal representative of the estate of Mwangi Muhoro. It is also not disputed that the suit property was not listed as part of the estate of Mwangi Muhoro on the certicate of conrmation of grant that was issued on June 9, 2008 as there was an active matter in court. 24 The law is that one can only represent the estate of a deceased person when a grant of representation has been made in respect of the estate of such deceased person under the Law of Succession Act. It is my view that given that the plainti is the legal representative of the estate of the late Mwangi Muhoro, she has the right to institute proceedings with respect to the suit property. This is on the basis of the judgement given by the court that held that the deceased Mwangi Muhoro was entitled to 290 acres of LR No 9271/1. 25 The second ground on the defendant’s preliminary objection is that the suit is in violation of Section 34 of the Civil Procedure Act. Section 34(1) of the Civil Procedure Act provides as follows; (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.” 26 A perusal of the plaint led herein indicates that the basis of the plainti’s claim is on previous litigation between the late Mwangi Muhoro, the defendant and other parties. The plainti averred in her plaint that Mwangi Muhoro (deceased) had instituted HCC No 165 of 1974 and judgement delivered on May 4, 2001. The plainti also had averred that the defendant in this matter was aggrieved with the said judgement and appealed to the Court of Appeal in case No 126 of 2004. The court of Appeal in its judgement upheld the determination by the High Court and awarded the defendant half of the costs of the counter claim. The plainti further averred that as per the decree, the late Mwangi Muhoro was entitled to 290 acres and the defendant entitled to 121 acres. It was the averment of the plainti that despite the valid court order, the defendant fraudulently acquired a title deed for LR No 9271/9 measuring 77.88 ha (192.44 acres) with the extra acres to be excised from the plainti’s land. Prayer (b) of the plaint was seeking for an order that the defendant’s title for LR No 9271/9 measuring 192 acres was issued fraudulently and that the defendant was only entitled to 121 acres of LR 9271/1. 27 The court in the case of James Wainaina Imunyo & 6 Others V Karanja Mbugua & Co. Advocates & Another [2012] eKLR while considering the provisions of Section 34 of the Civil Procedure Act stated that; …that if the plainti wishes to contest the execution process in that suit, then the only avenue open is to challenge that process in the same suit, and not by ling a fresh suit. I need not belabour the point, section 34 speaks for itself.” 28 It is my view therefore that this ground of the preliminary objection has merit and therefore ought to succeed. This is because it is quite evident that the plainti is challenging the execution of the decree issued on July 1, 2016 which should only be done in the said suit. Given this nding, I will not address the applications led by the plainti. Consequently, the plainti’s suit is hereby struck out with costs to the defendant. RULING DATED SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JUNE 2023. A.O. OMBWAYO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18569/eng@2023-06-29 6

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