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JudgmentFRANSISCA M. KAMBE VS MARIAM SEULIEMAN BATI AND BRUNO MANUEL GONZELEZ AND 2 Others7 min read

FRANSISCA M. KAMBE VS MARIAM SEULIEMAN BATI AND BRUNO MANUEL GONZELEZ AND 2 Others

Environment and Land Court at Kwale Environment and Land Court · · A. E. DENA, J

INTRODUCTION

  1. The Plaintiff filed this suit on 4th October 2017 against the 1st to 4th Defendants. The Plaint was later amended sometime in the year 2022 to include the 5th and 6th Defendants. In this suit it is averred that the Plaintiff at all material times is the legal registered owner of plot number Kwale/Diani Complex/205 (herein the suit land) following successful application for allocation by the Government of Kenya in 1995. That in 2017 the suit property was registered in favor of the 1st Defendant who then sold the same to the 2nd and 3rd defendants. The 5th and 6th Defendants were subsequently registered as proprietors. That the Plaintiffs details of proprietorship were fraudulently removed from the green card with the 4th Defendants assistance. The Plaintiff seeks a declaration that she is the legal owner of the suit property and revocation of the 2nd and 3rd 5th and 6th Defendant’s title.  
  2. Unknown to the Plaintiff the 5th and 6th Defendants filed ELC Case No. E065 of 2021 in Senior Principal Magistrates Court at Kwale. Their claim was that they had legally acquired the suit property by sale from Salim Ali Ngonzi and title issued in their names in February 2021. However, the said Bruno Gonzalez had denied them access thereof and had proceeded to erect permanent structures and was cultivating therein. In the lower suit the plaintiffs sought among others a declaration that they were bonafide purchasers for value, eviction of the said Bruno Gonzalez.
  3. On 2nd of March 2023 the 2nd and 3rd Defendants in the present suit filed a Notice of Motion. It was averred that the caretaker on the suit premises had been served with a decree in ELC Case No. E065 of 2021 above issued on 19th October 2022. That upon authentication of the decree and perusal of the proceedings in the lower court it emerged that default judgement was obtained against Bruno Gonzalez. By then the process of execution of the judgement was underway. They termed the same illegal as Mr Gonzalez was never served with the suit papers therein. It was alleged that the Plaintiffs in the lower court proceedings and who are the 5th and 6th Defendants in the present suit were aware of the proceedings herein having ben joined through an application dated 31/01/22. Their actions were said to be in bad faith and meant to circumvent the due process of the law. The 2nd and 3rd Defendants urged the court to set aside the impugned decree for want of service and for being subjudice these proceedings. That the execution of the said decree would render the present suit nugatory.
  4. On 2nd March 2023 I declined to entertain the above application for the reason that this court could only intervene as an appellate court. The courts view was that the applicant’s recourse lay in an application to be filed before the lower court to set aside the proceedings and seek joinder to defend the same. On 20th March 2023 the Notice of Motion was withdrawn by Ms. Waithira who intimated to the court that they had secured a temporary stay of execution of the judgement before the lower court. I directed Ms Kayata for the Plaintiffs in these proceedings to familiarise with the lower court proceedings and their import on this suit. She was to further explore joinder of the Plaintiff herein to the proceedings in the lower court.  This court gave time for the applications in the lower court to be filed determined and which was to assist in charting the way forward.
  5. On 30th April 2024 Ms. Kayata informed this court that the ruling had been delivered in the lower court where the learned Magistrate declined to set aside her judgement and formed the view that this matter should proceed as it. I had occasion to read the ruling whereupon I directed Ms. Kayatta to file submissions on the import of the said judgement vis a vis the instant proceedings where the subject matter was the same. The rest of the parties were to file theirs upon service. I reserved the ruling for 15th October 2024.
  6. None of the parties filed submissions by the time of preparing this ruling.
  7. This court had occasion to peruse the ruling dated 3/4/2024 on the application dated 18/7/23 which was filed by the Plaintiff herein in the lower court suit.  In the application the Plaintiff herein sought joinder as Interested Party and for setting aside of the judgement, decree as well as stay of proceedings in the lower court. The application was dismissed. The learned trial court was of the opinion that she had rendered a judgement on 5/10/2022 where the Applicant was not a party to the said proceedings. That effectively no judgement was delivered against her as the issues were between the parties in that suit. That if the applicant has an interest in the suit property the same can be determined in a different suit being the instant suit before me. That the issues raised will be better addressed before the present suit.
  8. I must clarify at the outset and set the record straight. This is not an appeal against the above determination. I have already stated elsewhere the purpose of this ruling is to render on whether this suit can proceed in view of the judgement rendered in the lower court touching on the same subject matter.
  9. The pleadings, judgement and decree of the lower court were attached to the supporting affidavit to the earlier Notice of Motion application filed by the 2nd and 3rd Defendants in the present application which I declined to entertain. I therefore had the opportunity to peruse the pleadings and the judgement of the lower court.
  10. In the lower court the Plaintiffs therein and who are 5th and 6th Defendants in the present were effectively declared the registered and lawful owners of the property parcel number Kwale/Diani Complex/205 and which is suit property the subject of these proceedings. The lower court ordered the eviction of Bruno Gonzalez from the suit premises. As it is the Judgement of the lower court still stands as a judgement of the court. The court is still faced with suit before it where the Plaintiff who was not a party in the lower court proceedings claims ownership of the suit property against all the parties that participated in the lower court proceedings. All the parties in the lower court proceedings are parties in the present suit.
  11. However, the 5th and 6th Defendants despite service by advertisement did not enter appearance in the present suit. To date they have not entered appearance despite knowledge of the pendency of these proceedings following the filing of the application dated 18/7/23 mentioned above which was dismissed. I note that the 5th and 6th defendants duly participated in the application through their lawyers Chimera, Kamotho & Company Advocates who according to the ruling filed a replying affidavit dated 7th November 2023 (see paragraph 5 the ruling). Clearly they became aware of the present proceedings.
  12. The plaintiff in the present proceedings was not a party to the proceedings in the lower court. She was never sued and this could be for the reason that the Plaintiffs in the lower court proceedings found Mr. Gonzalez in the premises. Should the judgement in the lower court stop the Plaintiff from accessing justice. My answer is a resounding no. I say so because that is her fundamental right. But the complication is that there is an existing judgement. Can this suit proceed in the pendency of the judgement in the lower court? In my view no because there cannot be two judgements on the same suit property. The legality of the title the subject of the decree is being questioned before this court.
  13. Having stated all the foregoing, the court is clearly faced with a situation that can ridicule and embarrass the court processes. There is need for intervention in the interest of justice and confidence of our courts. This court exercises supervisory jurisdiction over the Chief Magistrate court under Articles 165(6) as read together with article 162(2) of the Constitution of Kenya 2010.  Pursuant to this the following orders and or directions issue; -
  14. The lower court file being Senior Principal Magistrates Court at Kwale ELC Case No. 65 of 2021 Francis Githinji Ngatia & Kenneth Ndumbi Njoroge Vs. Bruno Gonzalez shall be placed before this court forthwith
  15. Ms. Leonida Atieno Ogotti Advocate of the firm of Chimera, Kamotho & Company Advocates who has conduct of the proceedings in the matter in 1) above shall be   summoned to appear before this court for the following purpose; -
  16. To be informed that there is pending before this court proceedings touching on the same subject matter in 1) above being plot number Kwale/Diani Complex/205.
  17. To make submissions on the best way forward in view of a) above
  18. This matter shall be fixed on 4th December 2024 to enable 2 above.
  19. These orders shall be extracted and served by the Kwale Court Process server physically upon Ms. Leonida Atieno Ogotti Advocate in 2) above

Orders accordingly.

Ruling dated signed and delivered this 10th day of October 2024.

Ms. Kayatta for the Plaintiff

Ms. Awino holding brief Faiz for the 2nd and 3rd Defendants

No appearance for 1st Defendant who is in person

No appearance for the 5th and 6th Defendant who have never entered appearance

Ms. Asmaa Maftah  – Court Assistant

    FRANSISCA M. KAMBE VS MARIAM SEULIEMAN BATI AND BRUNO MANUEL GONZELEZ AND 2 Others FRANSISCA M. KAMBE VS MARIAM SEULIEMAN BATI AND BRUNO MANUEL GONZELEZ AND 2 Others