KOMBO KIMEGA MUNDA AND MUNDA CHIMEGA- (suing on their own behalf and on behalf of the Mlaire Clan of the Duruma of Samburu VS

1 The application subject of this ruling is dated 11/10/2023. The Applicants seek the following orders;

1. SPENT
2. SPENT
3. THAT pending the hearing and determination of the Plaintiffs application an order of temporary injunction do issue against the Defendants restraining him whether by himself, his servants and/or agents from entering, trespassing into,cultivating,developing,building,selling,disposing of and/or interfering in any way whatsoever with the Plaintiffs possession and quiet enjoyment of the suit property being the unsurveyed property measuring approximately 150 acres or thereabouts situated at Samburu and abutting the old railway line opposite Devki Steel Mills Factory premises[title no KWALE/SOUTH SAMBURU/80] Samburu Sub County within Kwale County.
4. THAT pending the hearing and determination of the Plaintiffs application an order of temporary injunction do issue against the Defendants restraining him whether by himself, his servants and/or agents from entering, trespassing into, cultivating, developing, building, selling, disposing of and/or interfering in any way whatsoever with the Plaintiffs possession and quiet enjoyment of the suit property being the unsurveyed property measuring approximately 150 acres or thereabouts situated at Samburu and abutting the old railway line opposite Devki Steel Mills Factory premises[title no KWALE/SOUTH SAMBURU/80] Samburu Sub County within Kwale County.
5. That the officer in charge Samburu Police Station [OCS Samburu] be directed to enforce compliance with the court orders in respect of the suit property being the unsurveyed property measuring approximately 150 acres or thereabouts situated at Samburu and abutting the old railway line opposite Devki Steel Mills Factory premises [title no KWALE/SOUTH SAMBURU/80] Samburu Sub County within Kwale County.
6. That costs of this application be provided for.

2 The application is premised on grounds listed here below;

1. The Applicants are the legal and beneficial owners of the suit property which is ancestral land.
2. The Defendant is intent on trespassing onto the said property and /or selling or disposing off the same in violation of the Plaintiff’s property rights.
3. The Applicants stand to suffer irreparable loss and damage unless temporary injunctive orders are issued.
4. The balance of convenience tilts in favour of the Plaintiffs in the circumstances of this case.
5. It is fair and just that the Plaintiff’s property rights be safeguarded and further loss be mitigated by restraining the Defendants from acts of plunder and wastage.

3 The application is further supported by an affidavit sworn by the 1^st Plaintiff Kombo Kimega Munda. The deponent states that he is 59 years old and a member of the Mlaire clan. That the suit property belongs to the Mlaire clan as per the sketch lay he attached to the affidavit. out of the same. That he was born and raised on the land measuring approximately 250 acres and which was previously used for agricultural purposes. He stated that his ancestors who have since passed on were buried on the land which borders the Mwachiti Clan.

4 It is stated that the Mlaire clan sold 100 acres of land to National Cement Company Limited which has caused disputes between the clan members. That one Lubando Mangale being dissatisfied with the sale vowed to make sure the remaining parcel was to be dealt with differently and since then the Defendant started to lay claim on the remaining portion. That there have been several dispute resolution meetings over the suit property and which have not been conclusive but were in favour of the Defendant. The Plaintiffs state that they are apprehensive the Defendant might dispose the land and they stand to suffer irreparable loss hence the instant application and suit.

5 In response to the application, the Defendant filed a replying affidavit on 15/2/2024. It is averred that the suit property is situate in an adjudication section and the said area was declared so by a notice dated 24/7/2014 from the Ministry of Lands, Housing and Urban Development. A copy was presented. The Defendant states that the suit property belongs to the Mwachiti Clan and not the Mlaire clan. It is further stated that the Applicants have never been occupants of the suit property or residents and there is no proof of the same including the graves alluded to, a letter from the Chief Chengoni Location is annexed in evidence of this. At paragraph 6 the Respondent states that the applicants have not annexed any evidence indicating they are members of the Mlaire clan and have capacity to sue. That the land sale agreement attached to the Plaintiff’s pleadings does not have the clan as the vendors of the suit property.

6 At paragraph 11 the Defendant states that the suit property belongs to the Mlaire Clan as per the meeting held at the chief’s office on 21/12/2022 and members of both clans were present. The A copy of the minutes to the meeting is attached. The Respondent prays that the application is dismissed with costs.

7 Upon the matter coming up for hearing of the application, counsel for the respondent intimated to court that a preliminary objection had been filed against the suit. The court ordered that both the application and preliminary objection be heard concurrently.  The Defendant raised the preliminary objection on the following verbatim grounds; -

1. That the Plaintiffs lack legal capacity to commence the suit for and on behalf of Mlaire Clan, an amorphous entity not known in law and the suit is therefore incurably defective and must be struck out.
2. That the court lacks jurisdiction since the subject matter herein relates to unsurveyed and/or parcel of land under adjudication therefore offends the provisions of Section 30 of the Land Adjudication Act and Sections 7 and 8 of the Land Consolidation Act on ascertainment and recording of rights and interests in land.
3. That the Plaintiffs suit is incompetent as they have failed to exhaust the remedies available to them.
4. That the suit is an abuse of the court process and should be dismissed with costs.

8 The application and preliminary objection were dispensed by written submissions. The Plaintiff’s submissions were filed on 13/3/2024 and the Defendant on 13/3/2024. The court has considered the submissions.

Determination

9 I have considered the preliminary objection against the decisions in Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd [1969] E.A 696 and Oraro vs. Mbajja [2005] eKLR as to what a preliminary objection entail. I have noted that it is stated in the Plaint that the suit is brought on behalf of a clan and which is not in contest. The parties both recognise the existence of the two clans Mlaire and Mwachiti clans and therefore this does not require to be ascertained. Part of the objection finds its basis on this. The issue as to whether or not this court lacks jurisdiction and whether the Plaintiffs have the capacity to institute this suit is therefore properly raised as a Preliminary Objection and the same will be considered by this court.

10 It is contended that the Plaintiff lacks capacity to file the present proceedings on behalf of the Mlaire clan. Locus standi is defined in Black’s Law Dictionary as: - “The right to bring an action or to be heard in a given forum.” When faced with a similar scenario, Justice S M Kibunja in Phares Omondi Okech & 3 others (Suing for and on behalf of Kasgam Community – Wadhari Clan) v Victory Construction Co. Ltd & Kisumu Water & another [2015] eKLR made a finding that the Plaintiffs in the suit who had filed the same on behalf of the Kasagam Community had infact not pleaded that the Kasgam Community and Pahari Clan were registered as such under the Society Act or any other statute. The court noted that the plaintiffs had also not pleaded whether they were members to the two groups and the positions they held.  They had further not disclosed the names of the members of each of the two named groups. 

11 Back to the matter before court, as was found in the above case law, the Plaintiffs herein have not tendered any proof of being members of the Mlaire Clan and the authority under which they have filed the instant suit. As pointed out by the Defendant, the agreements presented as exhibits by the Plaintiffs bear the names of the Plaintiffs and others as the vendors of the property therein and with no rider of the transaction having taken place on behalf of the clan. It is this courts finding that the assertion that the suit is filed on behalf of the clan is not backed up by any evidence. As such, the Plaintiffs have no capacity to file the same for the clan. A question might arise as to whether this is an issue of procedural technicality and not an issue of substance.  It is in my view it an issue of substance.

12 On the above, the court is persuaded by the dictum of in Phares Omondi Okech case [Supra] where the learned judge stated; -

“That the issue of capacity to sue cannot be a matter of procedure as counsel for the Plaintiffs submitted to be cured through Article 159 of the constitution by the consideration of substantive justice.  The lack of capacity cannot be cured by Article 159 of the constitution that emphasizes on substantive justice or by applying the oxygen principle under Section 1A, 1B and 3A of the Civil Procedure Act (see Amina Hassan & 372 others. (suing as Lekiji Community) – V – Nigel Weibay Trent & another (2011) eKLR and Football Kenya Federation – V – Kenya Premier League & 4 others (2015) eKLR”.

13 This court’s jurisdiction to determine a dispute relating to land under an adjudication section has been questioned. The Land Adjudication Act sets out an elaborate and comprehensive procedure for dealing with any dispute that arises during the adjudication process. Section 30 (1) of the Land Adjudication Act provides as follows: -

“(1) Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under section 29(3) of this Act. [Rev. 2012] Land Adjudication CAP. 284 L5 - 17 [Issue 1].

(2) Where any such proceedings were begun before the publication of the notice under section 5 of this Act, they shall be discontinued, unless the adjudication officer, having regard to the stage which the proceedings have reached, otherwise directs.

(3) Any person who is aggrieved by the refusal of the adjudication officer to give consent or make a direction under subsection (1) or (2) of this section may, within twenty-eight days after the refusal, appeal in writing to the Minister whose decision shall be final.”

14 The said Section 29(3) referred to on the other hand states: -

“29(3) when all the appeals have been determined, the Director of Land Adjudication shall: -

• • • 1. Alter the duplicate register to confirm with the determination; and
      2. Certify on the duplicate adjudication register that it has become final in all respects and send details of the alterations and copies of certificate to the Chief Land Registrar, who shall alter the adjudication register accordingly.”

15 I have perused the notice dated 24/7/2014 by John M Karanja the Land Adjudication Officer Kinango Sub County. The suit property herein indeed lies under the adjudication section of that particular sub county. It is clear that there are clear mechanisms for the resolution of a dispute in the nature of the one before this court to be resolved before the court can be moved. As such in filing the present proceedings, the Plaintiff jumped the gun. The Court of Appeal in Speaker of National Assembly -Versus- Karume (1992) KLR 21 held that: -

“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.  Accordingly, the special procedure provided by any law must be strictly be adhered to since there are good reasons for such special procedures.”

16 Having found that the court is devoid of jurisdiction, it will be an exercise in futility making a finding on the application for injunction. Based on the foregoing discussions, I agree with the Defendant. I find the preliminary objection has merit and hereby strike out the suit herein. Each party shall bear its own costs.

Ruling dated, signed and delivered this 21^st day of June 2024.

Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:

Mr. Mitei holding brief for Mr. Abdi for the 1^st Defendant

No appearance for Plaintiff

Mr. Daniel Disii - Court Assistant.