Case ID:178164

Salome Wakhome & another v Tafroza Muhonja Alunga & 4 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 7 of 2020

Parties:

Salome Wakhome & Juliana Wakhome v Tafroza Muhonja Alunga, Wamalwa Wanyama Chimbanga, Paul Mweleza, Erastus Barasa & Moses Asichele

Date Delivered:

01 Jul 2021

Case Class:

Civil

Court:

Environment and Land Court at Bungoma

Case Action:

Ruling

Judge(s):

Boaz Nathan Olao

Citation:

Salome Wakhome & another v Tafroza Muhonja Alunga & 4 others [2021] eKLR

Court Division:

Environment and Land

County:

Bungoma

Case Outcome:

Notice of motion dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

ELC CASE NO. 7 OF 2020

.

SALOME WAKHOME.............................................1

ST

PLAINTIFF

JULIANA WAKHOME...........................................2

ND

PLAINTIFF

VERSUS

TAFROZA MUHONJA ALUNGA......................1

ST

DEFENDANT

WAMALWA WANYAMA CHIMBANGA.........2

ND

DEFENDANT

PAUL MWELEZA...............................................3

RD

DEFENDANT

ERASTUS BARASA...........................................4

TH

DEFENDANT

MOSES ASICHELE...........................................5

TH

DEFENDANT

R U L I N G

Whereas Courts have the power to strike out pleadings in appropriate cases, it is generally the practice that the power to do so should be exercised cautiously and sparingly.

MADAN J A

(as he then was) captured it as follows in the case of

D. T. DOBIE & COMPANY (KENYA) LTD .V. MUCHINA 1982 KLR 1

: -

“The Court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the Court.

At this stage, the Court ought not to deal with any merits of the case for that is a function solely reserved for the Judge at the trial

as the Court itself is not usually fully informed so as to deal with the merits without discovery, without oral evidence tested by cross – examination in the ordinary way.”

Emphasis added.

The Courts have continued to follow that path.In

CRESCENT CONSTRUCTION COMPANY LTD .V. DELPHIS BANK LTD 2007

, the Court of Appeal stated thus: -

“However, one thing remains clear and that is the power to strike out a pleading is a discretionary one.

It is to be exercised with the greatest care and caution

.This comes from the realization that the rules of natural justice require that the Court must not drive away any litigant, however week his case may be, from the seat of justice.This is a time honoured legal principle.At the same time, it is unfair to drug (sic) a person to the seat of justice when the case purportedly brought against him is a non – starter.”

In

FREMAR CONSTRUCTION COMPANY LTD .V. MINAKASH N. SHAH C.A CIVIL APPEAL No 85 of 2002 (NBI)

the Court said: -

“This Court has stated many times before, and the learned Judge of the superior Court was conscious of it, that striking out a pleading is

a drastic remedy

and the powers of the Court are to be

exercised with great caution and only in clear case

.But the power is clearly donated in the rules and exists inherently for the Court in the interest of justice, to reject manifestly frivolous and vexatious pleadings or suits and to protect itself from abuse of it’s process.”

The relevant provision is

Order 2 Rule 15(1)

of the

Civil Procedure Rules

which provides that: -

15(1) “At any stage of the proceedings the Court may order to be struck out or amended any pleading on the grounds that –

(a) It discloses no reasonable cause of action or defence in law; or

(b) It is scandalous, frivolous or vexatious; or

(c) It may prejudice, embarrass or delay the fair trial of the action; or

(d) It is otherwise an abuse of the process of the Court, and may order the suit to be stayed or dismissed or Judgment to be entered accordingly, as the case may be.”

By a plaint dated 13

th

February 2020 and filed herein on 19

th

February 2020, the plaintiffs sought Judgment against the defendants in the following terms: -

(a) An order of eviction of the defendants, their relatives or anyone claiming through the defendants from title NO BUNGOMA/NDALU/41 or any resultant sub – division of the suit premises.

(b) That the Deputy County Commissioner Tongaren Sub – County to provide security and oversee the forcible eviction of the defendants, their families and/or relatives.

(c) Costs.

The basis of the plaintiff’s claim is that at all material times, the land parcel

NO BUNGOMA/NDALU/41

(the suit land) was registered in the names of the deceased since 10

th

January 2017 having been transferred from the Settlement Fund Trustees where it had been registered from 14

th

December 1979.The deceased is not identified in the plaint but it is clear from the other documents filed herein that the deceased was one

JOSEPHAT WAKHOME NABISWA

and the plaintiffs are the Administrators of his Estate and that the defendants’ application to revoke the grant issued to the plaintiffs in respect to that Estate was dismissed vide a ruling delivered on 3

rd

April 2019 at

KITALE HIGH COURT SUCCESSION CAUSE No 13 of 2014

.That some of the defendants thereafter filed

BUNGOMA ELC CASES No 9

,

10

and

11 of 2019

seeking to be declared the owners of the suit land but that case was withdrawn.The defendants have without any colour of right or lawful excuse trespassed into parts of the suit land and occupied 8 acres thereof hence this suit.

By a joint statement of defence dated 18

th

March 2020, the 1

st

, 2

nd

and 4

th

defendants pleaded that they are not trespassers but are bona fide purchasers for valuable consideration.That they have been in exclusive open and notorious occupation of portions of the suit land measuring 8 acres and that the plaintiffs’ suit is time barred.They therefore denied being trespassers on the suit land and sought to enjoin in this case one

GILBERT KISIANG’ANI

one of the beneficiaries of the Estate of

JOSEPHAT WAKHOME NABISWA

.They therefore sought the dismissal of the plaintiffs’ suit.

By an application dated 10

th

September 2020, the defendants sought to enjoin

GILBERT KISIANG’ANI

as a third party in these proceedings.That application was allowed on 6

th

October 2020.

The Third Party filed his defence in which he pleaded that he was granted 5 acres out of the suit land for his and his sibling’s benefit following orders issued in

KITALE HIGH COURT SUCCESSION CAUSE No 13 of 2014

and he has no privity with the defendant.He denied having been a trustee or agent of

PATRICK JUMA WAKHOME

.He also denied that his father owned any part of the suit land and added that any purported sale to the defendants was null and void ab initio.

The 1

st

, 2

nd

and 4

th

defendants filed a reply to the Third Party’s defence and pleaded, inter – alia, that the Third Party was allocated a share of the suit land which was legally and lawfully bought by the 1

st

, 2

nd

and 4

th

defendants from

PATRICK JUMA WAKHOME

(deceased) who was entitled to 7 acres from the said Estate.The 1

st

, 2

nd

and 4

th

defendants pleaded further that there were more than 20 such purchasers of portions of the suit land yet only the defendants have been left out.That the Third Party and the plaintiffs have been aware of the shares of the 1

st

, 2

nd

and 4

th

defendants in the suit land but are ow colluding to defeat the said defendants’ legal interest therein.

The 3

rd

and 5

th

defendants appear not to have filed any defence yet.

I now have for my determination, the Notice of Motion dated 28

th

November 2020 and filed by the plaintiffs as well as the Third Party seeking the following orders: -

1. Spent

2. That this Honourable Court be pleased to strike out the 1

st

, 2

nd

and 4

th

defendants statement of defence dated 18

th

March 2020.

3. That this Honourable Court be pleased to enter summary Judgment against the defendants.

4. That costs of the application be provided for.

The application is premised under

Section 7

of the

Civil Procedure Act

,

Order 2 Rule 15 (1) (b)

and

Order 36 Rule 1 (1) (b)

as well as

Order 51 Rule 1

of the

Civil Procedure Rules

.The application is also based on the grounds set out therein and supported by the affidavit of

JULIANA WAKHOME

the 2

nd

plaintiff herein and his Counsel

JEREMIAH ONGERI SAMBA

.

The gravamen of the application is that the defendants were objectors in

KITALE HIGH COURT SUCCESSION CAUSE No 13 of 2014

claiming as beneficiaries entitled to 7.5 acres of the suit land but their objection was dismissed vide a ruling delivered by

CHEMITEI J

on 3

rd

April 2019.No appeal was filed against that ruling.They later filed

BUNGOMA ELC CASES No 9

,

10

and

11 of 2019

claiming a share in the suit land.Those cases were however withdrawn after the defendants realized that they could not claim the suit land through adverse possession when it was still registered in the names of the

SETTLEMENT FUND TRUSTEES

.That the plaintiffs are in the process of administering the Estate of

JOSEPHAT WAKHOME NABISWA

yet the defendants, in complete disregard of the ruling by

CHEMITEI J

, have continued to occupy the suit land hence this suit seeking orders for their eviction.

The application is opposed and both

TAFROZA MUHONJA ALUNGA

and

WAMALWA WANYAMA CHIBANGA

(the 1

st

and 4

th

defendants) as well as their Counsel

HENRY KEPHA ONYANDO

have sworn replying affidavits dated 8

th

March 2021 in opposition to the application.It is the defendants’ case that this suit is not res – judicata and that

CHEMITEI J

in his ruling delivered on 3

rd

April 2019 observed inter – alia, that: -

“In my humble view therefore, the applicants should therefore deal with the Estate of the late PATRICK JUMA WAKHOME and not the Estate of the deceased herein.”

That the said

PATRICK JUMA WAKHOME

who is the father to the Third Party sold land to the 1

st

and 4

th

defendants.That the said

JOSEPHAT WAKHOME NABISWA

had asked purchasers, including them, to contribute towards the payment of the

SETTLEMENT FUND TRUSTEE

loan.That the defence raises issues and to strike it out would be premature.That the 1

st

, 2

nd

and 4

th

defendants are in occupation of their respective parcels which they purchased from

PATRICK JUMA WAKHOME

in 1994 and triable issues are raised in their defences.

When the application was placed before me on 3

rd

February 2021, I directed that it be canvassed by way of written submissions.The same were to be filed on or before 10

th

March 2021.However, it was not until 31

st

March 2021 that all the submissions were filed.

I have considered the application, the rival affidavits and annextures thereto as well as the submissions by both

MR SAMBA

instructed by the firm of

SAMBA & COMPANY ADVOCATES

for the plaintiffs and Third Party as well as those by

MR ONYANDO

instructed by the firm of

ONYANDO & COMPANY ADVOCATES

for the 1

st

, 2

nd

and 4

th

defendants.

Before I delve into the merits or otherwise of the application, I must point out that both

MR SAMBA

and

MR ONYANDO

swore affidavits in support of their respective client’s cases.Ordinarily, where the clients are available, like in this case, and can depone to matters of fact within their knowledge touching on the dispute, it is desirable that Counsel stays out of the arena of litigation.While there would be no harm in Counsel deponing to issues of pure law, it is within the domain of the parties to depone to issues of fact.In the circumstances of this case, the parties were present and indeed deponed to those issues.I shall therefore expunge from the record both the affidavits of

MR HENRY KEPHA ONYANDO

dated 8

th

March 2021 and by

MR JEREMIAH ONGERI SAMBA

dated 28

th

November 2020.

Although not elegantly drafted, it is clear to me that the 1

st

, 2

nd

and 4

th

defendants are raising the defence of adverse possession with respect to the 8 acres of the suit land which they occupy.This is what is pleaded in paragraph 6 of their defence dated 8

th

March 2020: -

6 “The 1

st

, 2

nd

and 4

th

defendants further state that they have in (sic) exclusive, open and notorious occupation of the portion of land measuring to eight (8) acres with permission of the plaintiffs and other beneficiaries for more than 26 years without any interruption or query from the plaintiff and the 1

st

, 2

nd

and 4

th

defendants invites the plaintiff to strict proof as to their change of heart as to their occupation.”

The 1

st

, 2

nd

and 4

th

defendants have also pleaded in paragraph 10 that they are bona fide purchasers for valuable consideration and in any event, the prayer to evict them from the suit land is statute barred.

Order 2 Rule 15 (1) (b) (c)

and

(d)

of the

Civil Procedure Rules

upon which the application is predicated donates to the Court the power to strike out any pleading which is scandalous, frivolous vexatious or which may prejudice embarrass or delay the fair trial of the action or which is otherwise an abuse of the process of the Court.The view I take of the application is that a party should elect either to cite

sub – rule 1 (a) (b) (c)

or

(d)

but not a combination of all.That is why

Order 15 Rule 1

of the

Civil Procedure Rules

uses the word

“or”

between

Sub – rule (a)

to

(d)

.And that explains why there is a clear embargo on the admission of evidence where the application is predicated under sub – rule 1 (a).That notwithstanding, and having elected to approach the Court in the manner in which they did, the onus was on the plaintiffs to satisfy the Court that the defence by the 1

st

, 2

nd

and 4

th

defendants was plainly scandalous, frivolous, vexatious or one which may embarrass or delay the fair trial of the action or that it is an abuse of the process of the Court.I have already referred to some paragraphs of the said defence and they raise serious triable issues of adverse possession and limitation.Those are not issues that could be raised in the succession cause in

KITALE

because that Court was primarily concerned with the distribution of the Estate of a deceased person among the beneficiaries.It must also be remembered that a defence which raises a triable issues is not synonymous with a defence which must succeed –

PATEL .V. E.A CARGO HANDLING SERVICES LTD 1974 E.A 75

and also

KENYA TRADE COMBINE LTD .V. SHAH C.A CIVIL APPEAL No 193 of 1999

.

The plaintiffs similarly seek an order for summary Judgment to be entered in their favour.The power to enter summary Judgment is donated by

Order 36 Rule 1

of

the Civil Procedure Rules

as follows: -

“In all suits where a plaintiff seeks Judgment for –

(a) – liquidated demand with or without interest; or

(b) The recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non – payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser,

where the defendant has appeared but not filed a defence the plaintiff may apply for Judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and mesne profits.”

It is immediately clear that

Order 36 Rule 1

of the

Civil Procedure Rules

is inapplicable in the circumstances of this case.Firstly, the plaintiffs have not filed this suit seeking any liquidated demand.Secondly, there is no landlord – tenant relationship between the parties and lastly, the 1

st

2

nd

and 4

th

defendants herein have infact filed a defence.

In

LALJI

t

/

a

VAKKED BUILDING CONTRACTORS .V. CASOUSEL LTD 1989 KLR 386

, the Court stated the following with regard to the power to enter summary Judgment: -

“Summary Judgment is a draconian measure and should be given in only the clearest of cases.A trial must be ordered if a triable issue is found or one which is fairly arguable is found to exist.”

That decision has been followed in many cases and in

JOB KILACH .V. NATION MEDIA GROPU C.A CIVIL APPEAL No 94 of 2006 [2015 eKLR]

, the Court stated that: -

“Summary Judgment has far reaching consequences.It must therefore be granted only in the clearest of cases …….”

The Court went on to add as follows: -

“Before the grant of summary Judgment, the Court must satisfy itself that there are no triable issues raised by the defendant either in his statement of defence or in the affidavit in opposition to the application for summary Judgment or in any other manner.What then is a defence that raises no bona fide triable issue?A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the Court during a full trial.The BLACK’S LAW DICTIONARY defines the term “triable” as “subject or liable to judicial examination and trial” It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court.”

As I have already stated above, not only is this a proper case for the entry of summary Judgment but further, the 1

st

, 2

nd

and 4

th

defendants have by their defence raised triable issues.To deny them the opportunity to defend the claim against them and also prosecute their own claim would be a clear violation of their rights as protected by

Article 50 (1)

of the

Constitution

.I am also reminded of the words of

AINLEY J

as adopted by

SHERIDAN J

in

SEBEI DISTRICT ADMINISTRATION .V. GASYALI 1968 E.A 300

that: -

“The nature of the action should be considered, the defence if one has been brought to the notice of the Court, however irregular, should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered, and finally I think it should always be remembered that

to deny the subject a hearing should be the last resort of a Court

.”

Emphasis added.

Then there is the right to a fair hearing enshrined under

Article 50 (1)

of the

Constitution

.

Taking all the above into account, I do not consider this to be a proper case for striking out the defence or entry of summary Judgment.

The up – shot of the above is that the Notice of Motion dated 28

th

December 2020 is devoid of any merit.It is accordingly dismissed with costs to the 1

st

, 2

nd

and 4

th

defendants.

Boaz N. Olao.

J U D G E

1

st

July 2021.

RULING DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 1

ST

DAY OF JULY 2021 BY WAY OF ELECTRONIC MAIL IN KEEPING WITH THE COVID – 19 PANDEMIC GUIDELINES.

Boaz N. Olao.

J U D G E

1

st

July 2021