Sagalla Ranchers Limited v Westermann’s Camp Limited & 4 others (Environment & Land Case E001 of 2023) [2024] KEELC 4488 (KLR) (Environment and Land) (6 June 2024) (Ruling)
Neutral citation:
[2024] KEELC 4488 (KLR)
Republic of Kenya
Environment & Land Case E001 of 2023
EK Wabwoto, J
June 6, 2024
Between
The Sagalla Ranchers Limited
Plaintiff
and
Westermann’S Camp Limited
1st Defendant
Kale Holdings Limited
2nd Defendant
Wilmot Mwadilo
3rd Defendant
Patrick Mbinga
4th Defendant
The Land Registrar, Mombasa
5th Defendant
Ruling
1.This Ruling is in respect to the 3rd and 4th Defendant’s application dated 6th October 2023 wherein the following reliefs are sought: -
2.The application is premised on 10 grounds and supported by an affidavit sworn by Wilmot Mwadilo the 3rd Defendant herein. It was averred that the issues raised by the Plaintiff in this suit relate to acquisition of land thus the reason for filing this suit in the Environment and Land Court. The agreement for sale of the subject land was executed on 29th July 1999 between the Plaintiff and the 1st defendant which land was transferred to the 1st Defendant’s nominee the 2nd Defendant herein. The suit is therefore time barred as it offends the provisions of Section 7 of Limitation of Actions as the cause of action arose 24 years ago.
3.It was also averred that the 1st and 2nd Defendants have been in open and notorious occupation of the suit property from the year 1999 with full knowledge of the Plaintiff. The Plaintiff has never interfered or even attempted to evict the 2nd Defendants from the suit property. This clearly shows that the Plaintiff is being used by malicious persons hiding under the umbrella of the Plaintiff to harass, embarrass, intimidate and bully the 3rd and 4th Defendants. That additionally, the suit herein is res-judicata and sub-judice as the subject matter and the issues raised herein between the Plaintiff and the 3rd and 4th Defendants have in one way or the other been dealt with by the High Court and/or is still pending before the Court of Appeal in Mombasa COACA No. 3 of 2023 Sagalla Ranchers Limited =Versus= Wilmot Mwadilo and Patrick Mbinga being an appeal from Voi HCC Suit No. 1 of 2018 Sagalla Ranchers Limited =Versus= Wilmot Mwadilo & Patrick Mbinga (formerly Mombasa HCCC No. 86 of 2014) and Mombasa HCCOMM No. 74 of 2019 Sagalla Ranchers Limited =Versus= Wilmot Mwadilo & 6 Others.
4.It was further averred that by filing this suit the Plaintiff is improperly attempting to re-litigate issues which have already been dealt with and/or are still pending before a court of superior jurisdiction.
5.It was contended that there has been internal wrangles and chaos in the management and directorship of the Plaintiff company caused by external interferences from persons who are neither members nor shareholders of the Plaintiff company and the same has led to filing of multiple suits in courts being Voi High Court Civil Suit No. 1 of 2018, Voi HCC No. 4 of 2016 Eric Banda & 35 Others =Versus= Sagalla Ranchers, Mombasa ELC Case No. 210 of 2013 (dismissed), Mombasa ELC Case No. 175 of 2014 (dismissed).
6.The 3rd and 4th Defendants contended that the suit herein has been filed without the authorization of the Plaintiff as no board resolution of the Plaintiff containing the seal of the Plaintiff has been annexed to evidence such authority. It was further contended that the Verifying Affidavit sworn by Raphael Lewela Mbinga is fraudulent, incurable, defective and bad in law and the same offends provisions of Order 4 Rule 1 of the Civil Procedure Rules.
7.The application was opposed by the Plaintiff vide a Replying Affidavit sworn by Raphael Lewela Mbinga one of the Plaintiff’s Directors on 12th February 2024. It was averred that Voi HCC Suit No. 1 of 2018, Sagalla Ranchers Limited =Versus= Wilmot Mwadilo & Patrick Mbinga (formerly Mombasa HCCC No. 86 of 2014 and Mombasa COACA No. 3 of 2023, Sagalla Ranchers Limited =Versus= Wilmot Mwadilo and Patrick Mbinga relates to L.R No. 12177/4 measuring 20,000 acres and the suit property relates to L.R No. 12177/1 measuring 404.7 hectares. The cause of action are different and distinct in both suits. It was also averred that the orders sought in Mombasa HCCOMM No. 74 of 2019 Sagalla Ranchers Limited =Versus= Wilmot Mwadilo & 6 Others are different with the current suit and have different parties.
8.In respect to the requirement of the Board Resolution, it was averred that the same is not fatal and can be cured by filing the it any time before the hearing of the suit.
9.In respect to the limitation of actions, it was averred that Section 26 of Limitation of Actions Act extends the limitation period in cases where the action is based on fraud and the period of limitation does not begin to run until when the party has discovered fraud. It was argued that it was not until July 2021 or thereafter that the Plaintiff’s discovered fraud and annexture “RLM2” was attached in support of this.
10.Parties also filed written submissions in support and opposition to the application. The 3rd and 4th defendants filed written submissions dated 5th February 2024 and the 1st and 2nd Defendants filed written submissions dated 8th March 2024 in support of the application. The Plaintiff filed written submissions dated 28th February 2024 in opposition to the application. The court has duly considered the said submissions on record.
11.Parties were also granted an opportunity to highlight their written submissions. Learned Counsel Mr. Kinyanjui submitted on behalf of the 3rd and 4th Defendants/Applicants, Learned Counsel Mr. Mwai for 1st and 2nd Defendants while Learned Counsel Mr. Kurgat highlighted the Plaintiff’s written submissions.
12.The Applicants stated that the verifying affidavit had not been filed together with the plaint. The suit is filed outside the 12 years statutory period and that the same is res judicata.
13.Learned Counsel Mr. Mwai urged the court to consider the 1st and 2nd Defendant’s submissions on record and grant the orders sought in the application.
14.Learned Counsel Mr. Kurgat highlighted the Plaintiff’s submissions. He added that there is no prejudice on the part of the Defendants to justify the striking out of the suit. The defects if any do not go to the root of the suit and that a Verifying Affidavit should not be struck out on account of minor errors. Failure to annex the Board Resolution cannot invalidate the suit. The Board Resolution can be filed any time before hearing of the suit. The suit is not res judicata. The court has jurisdiction to hear the suit and the same raises more meritable issues. No limitation can be applied on a case of where fraud has been pleaded.
15.The court has considered the application, the written submissions filed and oral submissions made by Counsel for the parties and is of the view that the following are the main issues for consideration herein: -
16.In the case of Henderson vs Henderson (1843) 67 ER 313 res-judicata was described as follows;
17.Section 7 of the Civil Procedure Act, reveals that for the bar of res judicata to be effectively raised and upheld, the party raising it must satisfy the doctrine’s five essential elements which are stipulated as follows: -
18.The aforesaid provision was applied in the case of Abok James Odera vs. John Patrick Machira Civil Application No. Nai. 49 of 2001. However, as was held in the said suit, to rely on the defence of res judicata there must be:(i).a previous suit in which the matter was in issue;(ii).the parties were the same or litigating under the same title;(iii).a competent court heard the matter in issue;(iv).the issue had been raised once again in a fresh suit.
19.The court has carefully perused the pleadings in the matters referred to by the Applicants and the current suit and it is evident that this current suit relates to and seeks reliefs in respect to L.R. No. 24784 and 12177/1 measuring approximately 404.7 hectares which is exclusively different to 12177/4 measuring 20,000acres. Equally some of the parties in the suit referred to by the Applicants are different herein and as such this suit is not res judicata.
20.On whether the suit is time barred, Section 7 of the Limitation of Actions Act provides as follows ;
21.The purpose of the law of limitation was stated in the case of Mehta v Shah [1965] E.A 321, as follows;
22.In the case of Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104 Potter, JA stated the rationale of the law of limitation as follows: -
23.Section 26 of Cap 22 stipulates that:
24.In the case of Justus Tureti Obara vs Peter Koipeitai [2014] eKLR wherein J. Okong’o held that;
25.The Plaintiff pleaded fraud on the part of the Defendants at paragraph 23 of its plaint and specifically to the effect that the Plaintiff never executed the instrument of transfer made on 2nd November 2012 and that the alleged signatures of the said transfer had no authority to execute the same on behalf of the Plaintiff. The Plaintiff equally seeks a declaration that the Certificate of Lease issues to the 2nd Defendant on 2nd November 2012 regarding Subdivision L.R No. 24787 is illegal, null and void abnitio. The suit herein was filed on 25th August 2023 which was within the stipulated 12 years period and as such the Applicants’ contention that the suit is time barred is misplaced.
26.On whether the suit offends provisions of Order 4 Rule 1 of the Civil Procedure Rules 2010 as there is no affidavit sworn in verification of the averments made in the plaint, the Applicants argued that there was no Board Resolution authorizing Raphael Lewela Mbinga to sign the said affidavit and or institute the suit on behalf of the Plaintiff. This position was supported by the 1st and 2nd Defendants who argued that the plaint is not accompanied by a valid verifying affidavit contrary to Order 4 Rule 1(3) of the Civil Procedure Rules the purported Verifying Affidavit which purportedly accompanies the plaint has been sworn by an officer of the Plaintiff company duly authorized under the seal of the company to swear the affidavit contrary to Order 4 Rule 1(3) and that the Plaintiff has not filed a resolution of the Plaintiff company authorizing the filing of the suit. The Plaintiff on the other while placing reliance on the cases of Peeraj General Trading & Contracting Company Limited Kenya & Another =Versus= Mumias Sugar Company (2010) eKLR, Republic =Versus= General and 13 Others Misc. Application No. 67 of 2005 (2005) eKLR and Raymark Limited =Versus= John Lokoria (2021)eKLR submitted that the mere failure to file the board Resolutions with the plaint does not necessarily invalidate the suit,
27.Order 4 Rule 1 (4) of the Civil Procedure Rules 2010, deals with particulars to be contained in a plaint and states that:
28.In the case of Leo Investments Ltd v Trident Insurance Company Ltd (2014) eKLR Odunga J (as he then was) found that the mere failure to file the resolution of the Corporation together with the Plaint did not invalidate the suit and the associated himself with the decision of Kimaru J (as he then was) in the case of Republic vs. Registrar General and 13 Others Misc. Application No. 67 of 2005 [2005] eKLR where the court held as follows: -
29.In the case of Spire Bank Limited v Land Registrar & 2 others [2019] eKLR the Court of Appeal stated as follows: -
30.The Plaintiff describes itself as a limited company and therefore the deponent of the Verifying Affidavit ought to demonstrate that he or she has authority to do so. In the instant suit, I have seen the plaint dated 22nd August 2023. I have also seen that the same was accompanied by a Verifying Affidavit sworn by Raphael Lewela Mbinga on 22nd August 2023 who swore the Verifying Affidavit as one of the affected party directors.
31.In view of the above, it is clear that the person deponing the affidavit ought to have demonstrated that it had the authority to do so. However, lack of the same at this stage cannot invalidate the suit since the same can always be availed any time before the hearing of the suit. As such the Applicants objection on this aspect fails.
32.In view of the foregoing, this court comes to the inescapable conclusion that the application is without merit and the same is hereby dismissed with costs to the Plaintiff.It is so ordered.
DATED, SIGNED AND DELIVERED AT VOI THIS 6TH DAY OF JUNE 2024.E. K. WABWOTOJUDGEIn the presence of:-Ms. Chepchumba h/b Mr. Kurgat for the Plaintiff/Respondent.Mr. Mwai for the 1st and 2nd Defendants.Ms. Randa h/b for Mr. Gikandi for the 3rd and 4th Defendants/Applicants.Court Assistants: Mary Ngoira and Norah Chao.