Margaret Omoroje & 7 others v Johnson Kitheka Kathenge & 6 others [2017] KEELC 2543 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 98 OF 2017

MARGARET OMOROJE.........................................1^ST PLAINTIFF

BONIFACE KATHENGE..........................................2^ND PLAINTIFF

PHILLIP KIOKO KATHENGE.................................3^RD PLAINTIFF

BENSON MBUVI KATHENGE................................4^TH PLAINTIFF

NELSON KIEMA KATHENGE.................................5^TH PLAINTIFF

FRED MBITHI KATHENGE......................................6^TH PLAINTIFF

ABDALLAH JUMA KATHENGE.............................7^TH PLAINTIFF

RACHEL SYONTHI MWATU..................................8^TH PLAINTIFF

VERSUS

JOHNSON KITHEKA KATHENGE.....................1^ST DEFENDANT

JACKSON WAMBUA KITHEKA.......................2^ND DEFENDANT

JAMES KATHENGE KITHEKA..........................3^RD DEFENDANT

MARGARET MUSUKI KITHEKA........................4^TH DEFENDANT

MARTHA KITHEKA.............................................5^TH DEFENDANT

KITHOI MUKUU...................................................6^TH DEFENDANT

CLEOPUS MASILA KINDUI...............................7^TH DEFENDANT

RULING

1. In the Notice of Motion dated 18^th December, 2015, the Plaintiffs are seeking  for the following reliefs:

a. That a temporary injunction do issue restraining the 1^st Defendant whether by himself, his servants, agents or anybody claiming under him from charging, disposing, alienating, selling or otherwise parting with possession of Land Reference Numbers Kisasi/Nguuni Plot Numbers 1266 and 1269 pending the hearing and determination of this suit.

b. That a temporary injunction do issue restraining the 2^nd Defendant whether by himself, his servants, agents or anybody claiming under him from charging, disposing, alienating, selling or otherwise parting with possession of Land Reference Numbers Kisasi/Nguuni/342 pending the hearing and determination of this suit.

c. That a temporary injunction do issue restraining the 3^rd Defendant whether by himself, his servants, agents or anybody claiming under him from charging, disposing, alienating, selling or otherwise parting with possession of Land Reference Kisasi/Nguuni Plot Number 1265 pending the hearing and determination of this suit.

d. That a temporary injunction do issue restraining the 4^th Defendant whether by herself, her servants, agents, or anybody claiming under her from  charging, disposing, alienating, selling or otherwise parting with possession of Land Reference Kisasi/Nguuni/81 pending the hearing and determination of this suit.

e. That a temporary injunction do issue restraining the 2^nd, 4^th and 5^th Defendants whether by themselves, their servants, agents or anybody claiming under them from charging, disposing, alienating, selling or otherwise parting with possession of Land Reference Block Kisasi/Plot 17 pending the hearing and determination of this suit.

f. That a temporary injunction do issue restraining the 6^th Defendant whether by himself, his servants, agents or anybody claiming under him from charging, disposing, alienating, selling or otherwise parting with possession of Land Reference Kisasi/Nguuni Plot Number 1267 pending the hearing and determination of this suit.

g. That a temporary injunction do issue restraining the 7^th Defendant whether by himself, his servants, agents, or anybody claiming under him from charging, disposing, alienating, selling or otherwise parting with possession of Land Reference Kisasi/Nguuni/347 pending the hearing and determination of this suit.

h. That the costs of this Application be provided for.

2. The Application is supported by the Affidavit of the 3^rd Plaintiff who has deponed that the Plaintiffs are the sons and daughters of the late Paul Kathenge Kisithe while the 1^st Defendant is their eldest brother and that the 2^nd and 3^rd Defendants are the sons of the 1^st Defendant while the 4^th and 5^th Defendants are his wives.

3. According to the Plaintiffs, the suit properties belong to all of them through their parents.

4. It is the Plaintiffs’ case that adjudication in Kitui County commenced in late 1980’s; that their father died in 1971 and that it is the 1^st Defendant who assumed the leadership of their family after the death of their father.  Accordingly, it is the 1^st Defendant who was registered as the proprietor of the family’s land.

5. The 3^rd Plaintiff deponed that after registering all the suit properties in his name, the 1^st Defendant caused parcel of land known as Kisasi/Nguuni/342 to be registered in the name of the 2^nd Defendant while Plot No. Kisasi/Nguuni/81 was registered in the name of the 4^th Defendant.

6. It is the Plaintiffs’ case that the 1^st Defendant again caused another land belonging to the family being Plot No. 1267 to be registered in the name of the 5^th Defendant and that in the year 2010, the 2^nd Defendant transferred Plot No. 347 to the 7^th Defendant.

7. The Defendants filed a Notice of Preliminary Objection dated 15^th January, 2016 in which they averred that the suit and the Application are a nullity because the Defendants have not obtained the letters of administration for the Estate of their late father and that the suit is time barred.

8. In the Replying Affidavit, the 1^st Defendant deponed that all plots, except Plot No. 1266, are developed and occupied; that there is no trust relationship between himself and the Plaintiffs and that the suit properties are not family property but his properties.

9. According to the 1^st Defendant, he purchased unsurveyed plot numbers 1265, 1266, 1267, 1269, 1262 and 1268 from Wambua Mulu in 1970; that the plots were sub-divided in 1984 and that on 10^th February, 1973, the court was categorical that the land belonged to him and not to his late father.

10. In respect to plot numbers 342 and 81, the 1^st Defendant deponed that the same were bequeathed to him by his late grandmother and that he bought plot number 17 from his uncle Muthoki Kisithe.

11. As for plot number 347, it is the 1^st Defendant’s deposition that the same was given to him by his late mother as part of his inheritance and she also distributed other parcels of land to her siblings.

12. In his submissions, the Plaintiffs’ advocate submitted that this court has jurisdiction to hear this matter; that the Plaintiffs have not filed this claim on behalf o the Estate of their late father or mother and that this suit is founded on trust and is expressly excluded by Section 20(1) of the Limitation of Actions Act from the Act.

13. Counsel submitted that the suit that the 1^st Defendant filed in PMCC No. 157 of 1972 was to recover his and their father’s land but proceeded to claim that the land belongs to him.

14. Counsel submitted that the Plaintiffs have shown that they have a prima facie case with chances of success.

15. The Defendants’ advocate submitted that the Plaintiffs have not filed this suit as independent litigants; that a party suing on behalf of a deceased person must first obtain Grant of Letters of Administration and that having failed to obtain Letters of Administration, the suit is a nullity.

16. The Defendants’ counsel submitted that Section 20 of the Limitation of Actions Act only applies to beneficiaries under a trust and not to transactions involving land and that the Defendants are the lawful registered proprietors of the suit land.

17. The Plaintiffs’ suit was filed in the Environment and Land Court in Nairobi on 14^th December, 2015.  By the time the suit was being filed, there was no Environment and Land Court either in Kitui or Machakos County.

18. Consequently the Plaintiffs filed the matter in a court which had the requisite jurisdiction.

19. The Defendants have submitted that the Plaintiffs do not have the locus standi to bring this claim because they do not have the letters of Administration in respect to the Estate of their late father.

20. A perusal of the Plaint shows that the Plaintiffs’ complaint is that the 1^st Defendant had the suit properties registered in his name as the head of the Kisithe family who died in 1971.

21. Consequently, it is the Plaintiffs’ claim that the 1^st Defendant holds the suit property in trust for the entire family.

22. It is trite that section 28 of the Land Registration Act recognizes customary trusts as one of the overriding interests which the registered land may be subject to.

23. The issue of whether the claim by the Plaintiffs that the 1^st Defendant was registered as the proprietor of the suit land as a trustee for the entire family cannot therefore be wished away at this stage.

24. If indeed the Plaintiffs prove at trial that the 1^st Defendant was registered as the proprietor of the land on behalf of the Plaintiffs, then the issue of the Plaintiffs not having acquired the Letters of Administration in respect to their father’s estate will not arise.

25. Considering that the main prayer in the Plaint is for a declaration that the Defendants holds the suit land in trust for the Plaintiffs, then the suit cannot be said to be time barred in view of the provisions of Section 20 of the Limitation of Actions Act.

26. Section 20 of the Limitation of Actions Act expressly excludes the periods of limitation prescribed by the Act to an action by a beneficiary under a trust, which is an action “to recover from the trustee trust property in the possession of the trustee.”

27. Until the Defendants show at trial that the concept of trust does not arise in this case, the provisions of Section 20 saves the current suit.

28. The issue of whether the Defendants who are related to the Plaintiffs hold the suit land as trustees can only be ascertained at trial.

29. Considering that the 1^st Defendant has admitted that some of the properties were bequeathed to him by his mother and grandmother, and in the absence of written agreements to show that he purchased the other suit properties, an order of injunction should issue so as to preserve the suit properties pending the hearing and determination of the suit.

30. My observation above is based on the Judgment of the court in Kitui PMCC No. 159 of 1972 which was exhibited by the 1^st Defendant. In the said Judgment, the court started off by stating as follows:

“The Plaintiff’s (the 1^st Defendant herein) case is that the land in dispute was acquired by his father by living on it...”

31. The above Judgment shows that the 1^st Defendant’s claim over the suit land in Kitui PMCC No. 159 of 1972 was in respect to land which was acquired by his late father.

32. Consequently, the Plaintiffs’ claim that some of the suit properties were registered in the name of the 1^st Defendant in trust for the entire family is not frivolous.

33. For those reasons, I find that the Plaintiffs have established that they have a prima facie case with chances of success.  I therefore allow the Application dated 18^th December, 2015 as prayed.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 30^TH DAY OF JUNE, 2017.

O.A. ANGOTE

JUDGE