REPUBLIC OF KENYA IN THE MATTER OF THE LAND ACT NO. 6 OF 2012 AND IN THE MATTER OF THE LAND REGISTRATION ACT (NO. 3 OF 2012) AND. IN THE MATTER OF NATIONAL LAND COMMISSION ACT (NO. 5 OF 2012) IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS ELC CASE NO. £018 OF 2022 (OS) KIVAE RESIDENTS FARMERS ASSOCIATION (Suing through its officials Peter Ndeti, APPLICANT Daniel Kasamba Muia & Benedict Ndunda Nzomo).. -VERSUS- ‘THE CHIEF LAND REGISTRAR.. NATIONAL LAND COMMISSION 1st RESPONDENT 2ND RESPONDENT. A ant’s Submissions in support of the Chamber Summons Application dated 22.02.2023 Introduction: 1. Your Ladyship the Application before you is fairly straight forward. It seeks the leave of this Honourable court to convert the Originating Summons hereof into a Plaint. This suit is in relation to two properties known as LR. No. 339/1 and 339/4 which are occupied by the Applicant's 500 or so members. The Applicants seek registration of the title in their favour. Applicant's Case 2. The Applicant has 500 active members who occupy the two properties known as LR. No. 339/1 and 339/4. The properties measure about 1,833 Acres. They are located within Kivae area of Machakos County. 3. The Applicant’s members have occupied the said property as their ancestral home since pre-colonial times. They have their ancestors buried on the land. Their homes and their lives are based on the said parcel of land. 4. The Applicant initially instituted this matter to Court by way of Originating Summons dated 17.08.2022 seeking to compel the 1% Respondent to execute all documents necessary to register and issue title of all the suit land.5. The Applicant seeks that it be granted leave to convert its Originating Summons into a Plaint since the evidence in question can also be heard by way of viva voce evidence. 6. When the 1 Respondent's filed its response to the claim, it occurred to the Applicant that the matters raised in the Originating Summons should be heard by way of a Plaint since the issues in dispute are now complex and cannot therefore proceed by way of Originating Summons as initially filed by the Applicant. Issues for determination a) Whether the Applicant should be allowed to convert their Originating Summons to a Plaint and the proceedings continued as though the cause had begun by filing a Plaint thereupon. 7. Article 159(2)(d) of the Constitution directs that justice shall be administered without undue regard to procedural technicalities, In our view, the form and content of the document presented in court to determine a dispute is a technicality that should not clog the eyes of justice. The matter in dispute relates to a community trust land. It is one of the issues that is covered by Order 37 of rules. 8. The conversion of an originating summons into a plaint is of necessity when the issues of determination appear to be resolved through oral evidence in the normal manner. Originating summons can also be determined through oral evidence. However, a plaint opens pleading in a wider manner than the limited scope of an originating summons. 9. This court may at times order for conversion of a summons to a plaint suo motto under Order 37 Rule 19. In Land Case No. 1394 of 2016 (OS) Jaswant Harilal Chudasama Versus Shashikant Harilal Chidasama eKLR, Judge E.0. Obaga ruled that where the issue for determination is whether application is brought before Court for Conversion of Originating Summons into a Plaint, the consideration must be the intended purpose of the pleadings. He stated that the purpose of an Originating Summons was to bring to Court simple matters which would ideally be settled through summons where the matters to be determined are simple. He was guided by Order 37 Rule 19 that provides for Powers of court upon hearing of summons [Order 37, rule 19.] as follows: 1. Where, on an originating summons under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties fo add to, or to apply for particulars of, those affidavits. 2. Where the court makes an order under sub rule (1), Order 11 shall apply. 3. This rule applies notwithstanding that the cause could not have been begun by filing a plaint.4, Any reference in these Rules to proceedings begun by a plaint shall, unless the context otherwise requires, be construed as including a reference to a cause proceeding under an order made under sub rule (1). 10. The court reiterated that the only issue that would make the court allow for a party to convert its pleadings from an Originating Summons to the form of a Plaint would be where through pleadings filed in Court, it appears that serious issues of fact and law are brought forth that require that the pleadings format be changed. The ruling therefore, was that it was necessary that the Originating Summons ought to be converted into a Plaint and Ordered the same be done so. 11. In Kibutiri v Kibutiri [1983] eKLR J Law held that; “The procedure by way of Originating Summons is intended to enable simple matters to be settled by Court without the expense of bringing an action in the usual way, not to enable the Court to determine matters which involve a serious question.” 12, From the foregoing, J. Law was of the strict opinion that whereby the issues brought forth bring about a serious question(s) of fact or law, approaching the Court through Originating Summons would not be advisable since Originating Summons only deals with simple matters. In this case, the issues in question would require that the evidence brought to Court are weighty and proceeding via Originating Summons would limit the Applicants in that the evidence would not be sufficiently elaborated to the Court thereby occasioning them injustice. 13.Similarly, in Mnazi Moja Estates Limited v Mistry and 5 others [1987] KLR 269 the Court of Appeal held that the procedure of Originating Summons is not an appropriate way to commence an action where issues raise complex and contentious question of fact. 14. Based on the complex nature of this dispute, it is crucial that the Originating ‘Summons filed at the commencement of this suit be converted into a plaint in order to allow the parties the opportunity to sufficiently prove their respective positions in this dispute in a wider manner. 15, Furthermore, the jurisdiction of this honourable court granted by the Constitution and the Environment and Land Court Act is wide enough to cover the applicant's request. 16. It is alo clear that the Respondents will suffer no harm if the Chamber Summons Application dated 22.02.2023 is allowed. Conclusior 17. Its therofore in the interest of Justice that the orders sought herein be granted. We so humbly submit.Dated at Nairobi this...... a a raver ll (UGA & CO ADVOCATES FOR THE APPLICANT 2023 DRAWN & FILED BY: KIVUVA, OMUGA & CO ADVOCATES, REINSURANCE PLAZA, 157 FLOOR, TAIFA ROAD, P.O BOX 26083-00100, NAIROBI TEL: 0111243941 Email:info@kivuvaomuga.com/ kivuvaadvocates@gmail.com Tel. 0111243941 /0202214113/0202214233 TO BE SERVED UPON: 1. CAREN AIYABEI, LITIGATION COUNSEL, NATIONAL LAND COMMISSION, 18" NGONG AVENUE, OFF NGONG ROAD, NAIROBI 2. HON. ATTORNEY GENERAL AG CHAMBERS BEHIND MACHAKOS LAW COURTS P.O. BOX 1744-901 MACHAKOS, Email. cl.machakos@ag.go.ke Tel: 0721400638vaswant nanial Cnugasama v Snasnikant anal Unigasama [2v1/| CNL fiKENYA LAW EPUB! IN THE ENVIRONMENT & LAND COURT AT MILIMANI LAND CASE NO. 1394 OF 2016 [0S. IN THE MATTER OF A PARCEL OF LAND KNOWN AS LR NO.209/3383 NAIROBI AND IN ETHE MATTER OF SECTION 38 OF THE LIMITATION OF ACTIONS ACT CHAPTER 22 AND ORDER 37 RULE 7 OF THE CIVIL PROCEDURE RULES OF THE LAWS OF KENYA, BETWEEN JASWANT HARILAL CHUDASAMA. -PLAINTIFF AND SHASHIKANT HARILAL CHIDASAMA. .DEFENDANT RULING 1. This is a Ruling on respect of a Notice of Motion dated 30" March 2017 brought by the defendantiapplicant. The Notice of Motion. seeks the following orders:- 1. That this Honourable Court be pleased to order that the proceedings herein be deemed to have been begun by filing a Plaint. 2. That if prayer 1 is granted, this Honourable Court be pleased to enjoin as a defendant, the administrator of the estate of Harilal Mulji Chudasama when appointed. 3. That the defendant herein be at liberty to file a defence and counterclaim. 4. That parties do file witness statements, lists and bundles of documents and statement of issues. 5. That the costs of this application be in the cause. itp: kenyalaw org - Page 14vaswant Hania! Unuaasama v SnasniKant marial Unigasama (2011) eR 2. The defendant/applicant is a brother to the Ptaintiff/espondent. The applicant, the respondent and their father Harilal Chudasama (deceased) were registered as tenants in common in respect of LR No. 209/3383(suit property) which was purchased in or around 5" July 1974. The deceased's one third share in the suit property was later transferred to the respondent in the year 2003. 3. The suit property which is situated at Parklands area was home to all the children of the deceased. The applicant married while living in the suit property. The applicant later decided to move out of the suit property into his own house which he had purchased. The applicant moved out of the suit property in 1994 upon purchasing his own property in second Parklands Avenue. 4, On 11" Novernber 2016, the Respondent filed an originating summons in which he sought orders that he had acquired the suit property by way of adverse possession. This is what prompted the applicant to file the present application in which he among other prayers seeks that the originating summons be converted into a plaint. The applicant contends that the issues surrounding the originating summons raises complex issues of law and fact which cannot be ventilated in an originating summons. 5. The issues which the applicant intends to raise include fraud. He contends that the deceased's one third share in the suit property was transferred to the respondent in 2003 a year after the deceased had passed on. That the law requires that particulars of fraud be fully pleaded and proved and that this cannot be done in an originating summons. There is also the issue of whether property belonging to a deceased can be transferred to other individuals without there being no grant of letters of administration or probate. There is also an issue of whether there is a resulting trust. This is because the applicant contends that he contributed to the purchase of the suit property and that the transfer of one third share of the deceased to the respondent was done without his involvement as a co-owner of the suit property. 6. The applicant also contends that he will be raising issues pertaining the inclusion of the estate of the deceased once an administrator is appointed. The applicant states that the deceased had nine children. ‘Some are deceased and some are alive. 7. The applicant's application is opposed by the respondent based on three replying affidavits. The first one is sworn by the respondent on 24" April 2017. The second one is by Ramesh Harilal Chudasama sworn on 24" April 2017 and the third one by Hasmukh Harilal Chudasama sworn on 24" April 2017. The latter two are brothers of the applicant and the respondent. The respondent contends that the deceased's one third share was transferred to him and the transfer was executed before a prominent former Chief Justice of the Judiciary. That besides the transfer in respect of the suit property, the deceased also transferred one third share of his two other properties to the respondent. 8. The other two deponents confirm that the deceased voluntarily executed the transfers. That they are aware of the same. All the three deponents seem to fault the applicant for his decision to move out of the ‘suit property without informing them in advance. That the applicant only informed them of his new property as he was moving out. That this annoyed his parents. That he should have had the property acquired registered in the names of the deceased and the respondent as well 9, I have carefully gone through the detailed affidavit in support of the applicant's application as well as. the further affidavit which is also detailed. | have considered the three affidavits in opposition of the applicant's application as well as the submissions by the parties herein. The only main issue for determination in this application is whether the originating summons should be converted into a plaint. In dealing with this issue I have to go to the rationale behind claims being brought by way of originating summons. Originating summons were meant to deal with simple matters which the court can settle through that process. In other words criginating summons are appropriate where the issues sought to be ntp:dwnkenyalaw org -Page 214Jaswant marial Unugasama v onasnikant ranal Unigasama [ZU 11) enue determined are simple. In the case of Kibutiri say regarding originating summons:- x KAR thi * The procedure by way of originating summons is intended; “ to enable simple matters to be settled by the court without the expense of bringing an action in the usual way not to enable the court to determine maters which involve a serious question”. See also the case of Mnazi_Moja Estates Limited Vs Mistry and 5 others (1987) KLR 269 where the court of Appeal held that the procedure of originating summons is not an appropriate way to commence an action where issues raise complex and contentious question of fact. 10. Inthe instant case, the applicant has demonstrated through affidavits that there are serious issues of law and fact which need to be settled. For example there is the allegation of fraud. The law is clear that allegations of fraud need not only be particularized but also proved. This cannot be done in an originating summons. There is also the issue of whether one can deal with immovable property of a deceased before grant of letters of administration are confirmed. 44. The applicant wants to raise a counter-claim to plead fraud. There are serious contested facts as to whether the applicant made any contribution to the purchase of the property. The respondents are contending that the applicant did not make any contribution. Even where the applicant contends that he paid kshs.127502.30 towards repayment of the loan to Housing Finance Company of Kenya Ltd, the respondent claims that he is the one who gave the money to the applicant to go and pay as he was one Who had the family car on that day. All these are not issues which can be dealt with in an originating summons. 42. Order 37 Rule 19 of the Civil Procedure Rules gives the Court power to convert an originating summons into a plaint. Where that is done, the parties have to comply with Order 11 of the Civil Procedure Rules which require filing of documents and witness statements. | have looked at the submissions of the respondent which dwell on what is required to sustain a claim of adverse possession. This is not the issue here. The issue here is on whether what the applicant intends to raise can be dealt with in an originating summons. It is also not an issue of whether the intended claim by the applicant is statute barred or not. This is a matter which can be addressed in accordance with the law. There is the issue of resulting trust involved. The applicant needs to be heard on all these issues. In Mbaki & Others Vs Macharia & another (2005) 2 EA 206 at.210 it was stated as follows:- “The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard”. 13, The applicant herein can only be heard properly if he is allowed to raise a counterclaim. He cannot be heard is his plea to convert the originating summons into a plaint is not allowed. There are nine children of the deceased. Some are deceased and some are alive. The estate ought to be enjoined once an administrator is appointed. This court is fully aware that it has no jurisdiction to entertain the issue on Who becomes the administrator. This is the jurisdiction of the family division of the High Court. The applicant has clearly stated that the estate should be enjoined once an administrator is appointed. The respondent contends that properties of the deceased were distributed and that no complaint was raised especially regarding jewellery. All these issues cannot be determined in an originating summons. 44, On the analysis hereinabove, | find that this is a proper case where the originating summons ought to ev kenyataw-org - Page 3/4vaswant nanial Unugasama v Snasnikant mariial Unigasama [201 /) enue be converted into a Plaint. The result of this is that | find merit in the applicant's notice of motion which is allowed in terms of prayers 1,2,3,4 and 5, Itis so ordered. Dated, Signed and delivered at Nairobi on this 7" day of December 2017. E.0.0BAGA JUDGE In the presence of;- Mis Kamau for defendanUapplicant Court Assistant: Kevin E.0.0BAGA JUDGE ve ©@\8ERFMS vous re ny, src nd etl ho Can Sm abt rd Aan eee Se Sa fe tn fh ol pn cotardh aes uicdamah ae ry Sp enon Readout Pray Po |Disclaimer tate konyalawo1g - Page 4/4‘Nioutn v pouun| 1983] CAL. tiKENYA LAW IN THE COURT OF APPEAL AT NAIROBI (Corar aw, Potter JJA & Hancox Ag JA CIVIL APPEAL NO, 30 OF 1982) KIBUTIRI, APPELLANT KIBUTIRL.. -RESPONDENT This appeal arises out of proceedings instituted by way of an originating summons taken out under order XXXVI rule 4, by two plaintiffs against a defendant, all of whom are the partners in a fim known as Kiambaa Young Farmers, praying for the determination of the following questions: 4. “By his conduct is the defendant entitled to continue as a partner in the said firm. 2. If he is not entitled to continue as a partner, are the applicants entitled to carry on the partnership thereof. 3. In the event of the defendant being retired from the partnership, what if any share is he entitled to. 4. Who shall be responsible for the costs in this matter." The procedure by way of originating summons is intended: “to enable simple matters to be settled by the court without the expense of bringing an action in the usual way, net to enable the court to determine matters which involve a serious question.” This was said in Re Giles (2) [1890] 43 Ch D 391, a decision cited with approval by this court's predecessor in Kulsumbhai v Abdulhussein [1957] EA 699. See also Bhari v Khan [1965] EA 94 in which it was held that the scope of an inquiry which could be made on an originating summons and the abilty to deal with a contested case was very limited. When it becomes obvious that the issues raise complex and contentious questions of fact and law, a judge should dismiss the summons and leave the parties to pursue their claims by ordinary suit. The instant summons is very much in point; it occupied seven full hearing days, spread over three years, many witnesses were called and exhibits produced, and the hearing was followed by a long “judgment” (which should have been a ruling) and a “decree” (which should have been an order) the effect of which was to dissolve the partnership entirely (which was not a relief claimed in the summons) and to partition the land (on which the firm cartied on its farming activities amongst the two plaintiffs and the defendant. This tpl kenyalan org -Page 114OWL ¥ ROUEN TY69] ERT purported partition was completely irregular, for two reasons — 1) itis and always was common ground that the land was not the property of the firm, and 2) the court below had no jurisdiction to partition the land, even if it had been the property of the firm. Furthermore, the summons contained no prayer for partition. The judge embarked on this exercise entirely on his own initiative. The jurisdiction of a court on an originating summons taken out by a partner under order XXXVI rule 4 is specifically limited to the following purposes a) having the partnership dissolved; b) taking the accounts of and winding up such partnership. In purporting to partition what he thought was partnership property, the judge acted in excess of his jurisdiction. The first appellant has appealed against the whole decision of the leamed High Court judge. The defendant is the respondent. The appeal presents no difficulty, as Mr Karanja for the respondent does not seek to support that decision. The appeal is accordingly allowed, and the purported “judgment” and “decree” set aside, The problem which now has to be faced is the vexed question of costs. The learned judge made no order as to the costs of the summons, although this was one of the specific questions in the summons. It may have been an oversight, or the judge may have intended to leave the patties to bear their own costs. If $0, he should have made this clear. My personal view is that both parties are equally to blame for the deplorable course of events in the High Court. It must have been obvious at an early stage that the dispute between the parties could not be resolved on an originating summons. One or other of the advocates involved, or both of them, should have invited the judge to refuse to pass any order on the summons, under rule 10 of order XXXVI, and to refer the parties to a suit in the ordinary course. | would order that the parties bear their own costs of the proceedings in the High Court. As regards the costs of this appeal, Mr Gautama for the appellant submits that the appeliant should get his costs, as he had to come here to have the High Cours order reversed. He also pointed out that the ‘appeal was filed in July last year, but it was not until he had completed his argument before this court that Mr Karanja for the first time indicated that he was not opposing the appeal. Had he informed Mr Gautama earlier that this would be his stand, some costs would have been saved. At the same time, it must be remembered that it was the appellant (then represented by another advocate) who instituted the inappropriate proceedings which necessitated the bringing of this appeal, and is largely responsible for the irregular course taken by the proceedings in the High Court. | would make no order for costs in the appeal. To summarize, | would allow this appeal, and leave the parties to bear their own costs both in this court and in the High Court. Finally, | would like to advise judges who have to deal with an originating summons to consider the judgments of this court in Kenya Commercial Bank Ltd v James Osebe (Civil Appeal No 60 of 1982) and in particular the judgment of Hancox Ag JA in which the law and practice relating to originating summonses, and their scope, are extensively reviewed. Potter JA. | fully agree with the judgment of Law JA, which | have had the advantage of reading in draft, and | concur in the orders proposed by him. itp: kenyalaw rg - Page 244INoUUIT ¥ KipUUNLI¥83] RL Itis difficult for this court to decide the question of costs in a case like this where the trial judge and the advocates on both sides (in the lower court) are jointly responsible for the waste of the litigants’ money. This is not the first time in recent months that this court has had occasion to recall to mind that the limited scope of the procedure by way of originating summons was clearly defined little less than a century ago, in Re Giles (2) (1890) 43 Ch D 391. The advocate for the plaintiff in this case should not have proceeded by way of originating summons. The advocate for the defendant should have objected. ‘And the trial judge should have struck out the summons and ordered the plaintiff to proceed by ordinary suit. | would like to give one piece of advice to ingenious lawyers. Short cuts are fine, as long @s you are absolutely sure they won't land you in the ditch: Hancox Ag JA. | have had the advantage of reading in draft the judgments prepared by Law JA and by Potter JA, with which I wholly agree. It was stated in the appellant's supporting affidavit to the originating summons heard by Nyarangi J that a partnership had been formed between his brother, the respondent, his sister, the second plaintiff, who is not a party to this appeal, and himself on July 7, 1971. This was the Kiambaa Young Farmers Association. The second plaintiff was not however registered as a partner under the Registration of Business Names Act (cap 499). The document exhibited to the appellant's affidavit was not formally expressed as a partnership agreement, but one under which the parcel of land at LR 165/9 Kiambu, comprising 127 acres, was to be transferred by the two brothers, who then owned it as tenants in common, to the three parties to the action, that is, including their sister, in shares proportionate to their respective stated contributions, or agreed contributions, namely Kshs 118,900, Kshs 9,000 and Kshs 12,000. The only formal partnership document in the appeal record is the Deed of Partnership made on September 10, 1964 between the appellant and the respondent and two people each called Kinuthia, the Kiambaa Young Farmers, whereby, inter alia, the property was to belong to that Partnership, and the business was to be carried on from there. In fact the land in question had been conveyed about a month earlier by the widow of Arthur Kenneth Baxendell to all four of these partners as tenants in common in equal shares. The two Kinuthia's then conveyed their undivided share in the land to the appellant and the respondent for an expressed consideration of Kshs 44,169.80 by an indenture dated September 30, 1967. However the appellant testified that his sister “became a partner in 1964 when the other two left." Loice herself said that she was a partner in the petrol station business at Kilimani. Her name does not appear in any of the partnership's accounts for the four years ending December 31, 1975, 1976, 1977 or 1978 respectively. The Tax Returns produced for the years of income 1976 to 1979 inclusive, are those of the respondent. However it seems that there was a de facto partnership between the three parties, from Mr Gautama’s statement in his address that that was an undisputed fact, was not refuted by Mr Karanja, on behalf of the respondent. Otherwise it might have been open to question as to whether even the basic established fact was that there was a partnership between the parties, which could be the basis of an originating summons. Nonetheless, itis perfectly plain on the evidence (and it is common ground) that the Kiambu land never became the property of this partnership. Accordingly it was not, and could not have been, the subject of determination of questions by the court on an originating summons which as Law JA has said, is of limited scope as to the questions which may be determined thereon, Accordingly, | agree that this appeal should be allowed On the question of costs | agree with all that has fallen from Law JA. On the one hand it can be said with justification by Mr Gautama that he was leit with no option but to seak to overtum the decision of the ip: konyatoworg - Pago 3/4MOUUN Vv RIDULIT, 1909] ERLK High Court, and that Mr Karanja did not indicate that he was not opposing the appeal until the last moment. Nor did he file a cross-appeal. Equally, Mr Karanja submitted, that his clients were no more at fault than the plaintiffs (if, indeed, they were at fault at all) for the course of events which took place. They had to come to court to defend the summons. And he is on record as stating quite clearly to the learned judge that the partnership did not own the land and that its ownership could not therefore be determined in the summons. As Law JA has said it was incumbent on each side to appraise the court of this situation. Im these circumstances | also agree with the order as to costs proposed by Law JA. Dated and delivered at Nairobi this 10th day of February, 1983. EJ. ELAW JUDGE OF APPEAL K.D G.H POTTER JUDGE OF APPEAL AR.W HANCOX Ag.JUDGE OF APPEAL | certify that this is a true copy of the original DEPUTY REGISTRAR © FBI es nt sim tie ctr rh eben om tomer ir tin cme isteach sleprioscrvarein rewind an eee to ay opens Rend our Prag Paley | Deciamar| Intpsteww kenyataw.org - Page 4/4WINAZL MIUJA ES TATED LIMILEU V AMBALAL PUNOMU | TAM MIDIR ANU FIVE UINERD [1880] CALE iKENYA LAW REPUBLIC OF KENYA IN THE COURT OF APPEAL (Coram: Hancox, J A & Platt & Gachuhi, Ag JJ A CIVIL APPEAL NO 47 OF 1986 BETWEEN MNAZI MOJA ESTATES LIMITED .. APPELLANT AND AMBALAL PURSHOTTAM MISTRY AND FIVE OTHERS .. . RESPODENT (Appeal from the adjournment order on cost and ruling of the High Court of Kenya at Mombasa (Aragon J) dated February 14, 1986 In Civil Case NO 867 (0 S of 1985) JUDGMENT OF HANCOX. J A ‘The first respondent in this appeal from the decision of Aragon, J dated the February 14, 1986, is, for the purposes of this appeal at least, the successor to the lessee of the property at plot No 416 of section 21 at Mombasa, which was leased for a term of ninety-nine years to Hira, the wife of Balwantray Karsanji Doshi, by an indenture dated September 25, 1956 by the present appellant Mnazi Estates Ltd The indenture contained the following clause: '2{j) The lessee shall not transfer, assign or sub-let the demised premises or any part thereof without the written consent of the lessars which consent however shall not be unreasonably withheld the lessee being responsible for all costs incurred by the lessors for the preparation or approval of such consent to tptvwn keryalaw.org- Pago 1/0MIVACIMUJA ESIATES LIMITED VAMBALAL PURSMUL IAM MIS IRY ANU PVE UI HERS [1860] OLN. be endorsed on such transfer assignment or sub-letting. The lessee shall supply to the lessors a true copy of the instrument of such transfer, assignment or subletting and pay the fees of the lessors' advocates for perusing such instrument and witnessing the lessors’ consent thereon provided however that such consent will not be necessary for any mortgage or charge or for a sub-lease of the plot or the premises thereon for a period not exceeding three years.” The term sought to be assigned is more than three years in this case and so the latter part of the sub- clause does not apply. The fith and sixth respondents, Mr & Mrs Pereira, are desirous of purchasing the unexpired portion of the lease from the first respondent and his three co-lessees ( who are the second, third and fourth respondents respectively ) for Kshs 400,000.00 and have borrowed money from Barclays Bank for the Purpose against the Bank's security of a charge on this proposed lease —hold interest. Accordingly the first four respondents wrote through their advocates, Messrs Atkinson, Clearly and Satchu, seeking the appellant's consent to the proposed assignment to the Pereiras’ by a letter dated October 7, 1985. They did not receive a positive or a negative reply to the request. Instead, on October 9, the appellants replied that they would have to refer the matter to Mr Githere for signature on his return to Kenya. However, there are two affidavits on record dated December 4, 1985, the one in support of the originating summons filed by the respondents in High Court, by the first respondent, and the other by Mr Pereira, each of which states that the deponent called at the appellant's premises and was told by ‘a director’ that consent would not be given to the proposed transfer. No details of the refusal are given in the affidavits, for instance, who refused the consent and when the refusal took place. Thereupon the respondent filed the originating summons to which | have referred, seeking an order that the appellants should sign the necessary consents to the transfer to the Pereiras’ and to the Bank charges, and in default that the Deputy Registrar of the court should sign them. The summons was duly heard by Aragon, J on February 14, 1986 when for the first time it was revealed that the appellant company's reason for refusing consent was that it wished to purchase the property concerned. This is reiterated in the affidavits of Mr Githere, the appellant's director, of February 14, 1986, which says it is prepared to offer the same price and refutes the allegations that any of the respondents called at the company's offices to discuss the question of its consent to the transfer. Mr Satchu, on behalf of the respondents, said that this affidavit was filed during the adjournment on February 14. Mr Gimaiyo, on behalf of the appellant, blamed the respondents for rushing to the court and not giving the company an adequate opportunity before hand to decide whether to give its consent or not, while Mr Satchu says that if the appellant had given its consent on February 14, this point might have had some validity, and he blames the appellant for not revealing the reason for its refusal beforehand. ‘At all events Aragon, J rejected the reason purportedly given by the appellant company for withholding its consent, stating that the authorities to which Mr Satchu then referred, and to which he again referred in this court, were clear that a desire to purchase the lease by the reversioner was not in. law a valid reason. In consequence he granted the prayers and declarations sought by the respondents. Ihave studied both the cases to which Aragon, J was referred, namely Bates v Donaldson [1896] 2 QB 241, and Re Winfrey & Chatterton's Agreement, [1921] 2 ch 7. In both of them a prior offer had been made by the reversioner, or the purchaser of the reversion on the lease, to buy the lease, and in each case the court held that the object of refusing consent to the assignment of the lease proposed was to ‘coerce the lessee or tenant into selling it to the lessor and to enable the lessor to obtain possession of tp kenyalow.ong - Page 219MINA MUA ES LAIES LIMITED ¥AMBALAL PURSHUI 1AM MIDINT ANU FIVE UINERD [1400] RL the premises. There was no such prior offer in the instant case. The supposed reason may have been an afterthought, but for my part, | am not satisfied that the reason for the refusal was to coerce the present lessees into selling the remainder of this lease to the appellant company. | have considered the other two authorities referred to us by Mr Satchu. In the first of them, Lovelock v Margo [1963] 2 ALL ER, 13 the court rejected further reasons advanced at the hearing for refusing consent to the assignment, and held that the reason given at the time of the refusal amounted to an unreasonable refusal of consent. In the second case Bromley Park Garden Estates v Moss, [1982] 2 ALL ER 890, the court of appeal expressed the view that a landlord can only be permitted to rely on reasons which actually influenced his mind at the relevant date, namely the refusal of the consent. | do not think either of these last two authorities assist the respondents case here, for its in dispute on the affidavits that there ever was a refusal of consent, or even an opportunity to refuse it, and the only reason given was advanced at the hearing. | am not prepared to go so far as to say that a desire by the landlord to purchase the reversion himself can never, as @ matter of law, constitute a valid reason. As to the question of whether an originating summons was the appropriate method of bringing this matter before the court, this court has held in James N, Kibutiri v Eliud Niau Kibuti [1983] | KCA 38 and in Wakf Commissioner v Mohamed bin Umeya bin Abdulmaji bin Mwijabu & Another, Civil Appeal 83 of 1983 that this procedure is inappropriate when the issues raise complex and contentious question of fact; see also Kenya Commercial Bank Lid v James Osebe [1982] 1 KCA 1. However, the appropriateness or otherwise of the originating summons procedure was not, in my judgment, raised as an issue on the appeal, and | would prefer to express no opinion thereon at the present stage. However, for the reasons | have earlier given I would respectfully differ from Aragon, J that, on the material on the record and before the judge, it was shown that the landlords had unreasonably refused their consent to the proposed transfer. | would therefore allow the appeal and set aside the order and decree of the High Court. | would make an order remitting the proceedings to the High Court to hear and determine the case according to the evidence, which in my opinion should be oral evidence, brought before it. | would award the costs of the appeal to the appellant. | agree that each party should bear their own costs of the High Court proceedings. Dated and delivered at Mombasa this 22nd day of July, 1986. ARW Hancox Judge of Appeal REPUBLIC OF KENYA INT L AT MOMBASA (Coram: Hancox, J A & Platt & Gachuhi, Ag JJ A tpn kenyataworg -Pege 29MINAZI MJA ES FATED LIMITEU VAMBALAL FUNSHUI LAM IMIS ITT ANU FIVE UIER®S [1990] CALE. CIVIL APPEAL NO 47 OF 1986 BETWEEN MNAZI MOJA ESTATEDS LIMITED APPELLANT AND AMBALAL PURSHOTTAM MISTRY AND FIVE OTHERS ....... . RESPODENT (Appeal from the adjournment order on cost and ruling of the High Court of Kenya at Mombasa (Aragon J) dated February 14, 1986 Civil Case NO 867 (O'S of 1985) JUDGMENT OF PLATT, AG JA In the memorandum of appeal it is protested that several steps in the proceedings were undertaken so unreasonably, that there was a failure of justice. Its argued that a retrial should be ordered. The main issue in the trial was whether the High Court would be justified in holding that the landlord (actually ‘head lessee”, but nothing tums on that point) had unreasonably refused consent to the proposed assignment of the sub-lease by the sub-lessee to a third party. In the learned judge's view, the reason given for withholding consent was not valid in law, the authorities being clear on the point. Consequently, the leamed judge made a declaration that consent should be deemed to have been given, and tho Deputy Registrar was empowered to sign all such documents as may be required. The *Landlord” now appeals, and was represented by Mr Gimalyo. The respondents are four Persons who belong to the Mistry family, and Mr & Mrs Pereira. Mr Satchu represents all these respondents. The dispute arose when the Mistry's sought to assign their lease to Mr & Mrs Pereira, The hitp:w konyalaworg -Poge 4/0MINAG MUJA ES FATES LIMITED VAMBALAL FURONU | LAI MID ITY ANL FIVE UI TERS [1¥00] RL parties will be referred to by their position in this appeal unless the circumstances dictate that they should be named, By an indenture dated April 25, 1956 the present appellant Mnazi Moja Estates Ltd leased to various people the property in question for ninety-nine years, the sublessees at present being the four Mistrys. Their position is not in dispute, a matter made clear during argument. Covenant 2() provides as follows: “The lessee shall not transfer, assign or sub-let the demised premises or any part thereof without the written consent of the lessors which consent however shall not be unreasonably withheld the lessee being responsible for all costs incurred by the lessors for the preparation or approval of such consent to be endorsed on such transfer assignment or sub-letting, The lessee shall supply to the lessors a true Copy of the instrument of such transfer, assignment or sub-letting and pay fees of the lessors advocate in perusing such instrument and witnessing the lessor’s consent thereon provided however that such consent will not be necessary in any mortage or charge or for a sub-lease of the plot or the premises thereon to a person not exceeding, three years.” The last provision relating to the period of three years, does not apply to the ‘sale’ of the premises to Mr & Mrs Pereira, but the latter may require a mortgage, to raise the purchase price. It is not an issue which this court can decide, as the proposed mortgage has not been included in the record of appeal; but it is apparently referred to in paragraph 6 of the appellants affidavit ( filed on February 4, 1986 ), to the effect that the appellant “cannnot’give consent to a charge or mortgage for a period not exceeding three years. It is not known for how long the mortgage is to last, but according to Mr Satchu, this is academic since the mortgage will stand or fall with the assignment. The issues now before this court are completecated by the lack of procedure pursued by the High Court. At the beginning of the hearing of the appeal, the court asked for the evidence of the refusal of consent by the appellant. There was no letter embodying any such refusal. It had to be implied, according to Mr Satchu, from the appellant's affidavit ( referred to above ) and especially in paragraph § thereof, in which it is stated that the appellant was prepared to buy the premises at the same purchase price of Kshs 400,000.00 at which Mr & Mrs Pereira had been offered the premises. That is not an outright refusal. Itis a counter-offer. Whether the respondent rejected that counter-offer, or whether in the end the appellant refused consent is not clear. Mr. Satchu further inferred from the appellant's stand in court, that he had refused consent and that would seem to follow from Mr Kiamba’s comment that he had only received on the morning of the trial, instructions that the appellant's reason for refusing consent, was that the appellant wished to purchase the property. But that was not the position earlier on. From the correspondence, no answer had been given. Mr Satchu applied by letter dated October 7, 1985 for consent to the asginment. The appellant's office replied on October 9, 1985 informing Mr Satchu that Mr $M Githere would be dealing with this matter, and at that time he was out of the country. The originating summons was filed on December 5, 1985. It is not clear what steps were taken before the latter date. The affidavit fled in support, by Mr. Ambalal Mistry & Mr Pereira, both of December 4, 1985 explain that they went to the appellant's premises at Bima Towers, Mombasa, where they saw a Director, who refused consent. Mr S M Githere challenged their statements in his affidavit dated February, 1986, by saying that he was responsible as the Director authorised to answer for the appellant company. The company's offices are in Nairobi. Nobody had approached him to discuss the matter. It is clear that before the application was brought there was no clear refusal. Moreover, itis not clear when, and who it ‘was, who was alleged to have refused consent in Bima Towers; nor what was actually said, and whether that person had any authority to act. The respondent knew that they had a deal with Mr S M Githere; apparently they did not. It follows that the court had to investigate the area of conflict before it concluded that consent had been refused before the application was brought for the lessor to obtain possession of itp kenyalaw org - Page 5/9MINAG! MUA ESIATES LIMITED VAMBALAL FURSTU! IAM MIS IT ANU FIVE UI TERS [1880] ELE. the premises. There was no such prior offer in the instant case. The supposed reason may have been an afterthought, but for my part, | am not satisfied that the reason for the refusal was to coerce the present lessees into selling the reminder of this lease to the appellant company. I have considered the other two authorities referred to us by Mr Satchu. In the first of them, Lovelock v Margo [1963] 2 ALL ER, 13 the court rejected further reasons advanced at the hearing for refusing consent to the assignment, and held that the reason given at the time of the refusal amounted to an unreasonable refusal consent. In the second case Bromley Park Garden Estates v Moss [1982] 2 ALL ER 890, the Court of Appeal expressed the view that a landlord can only be permitted to rely on reasons which actually influenced his mind at the relevant date, namely the refusal of the consent. | do not think either of these last two authorities assist the respondents case here, for it is in dispute on the affidavits that there ever was a refusal of consent, or even an opportunity to refuse it, and the only reason given was advanced at the hearing. | am not prepared to go so far as to say that a desire by the landlord to purchase the reversion himself can never, as a matter of law, constitute a valid reason. As to the question of whether an originating summons was the appropriate method of bringing this matter before the court, this court has held in James N Kibutiri v Eliud Kibutiri [1983] | KCA 38 and in Wakf Commissioners v Mohamed bin Umeya bin Abdulmaji bin muijabu & Another, Civil Appeal 83 of 1983 that this procedure is inappropriate when the issues raise complex and contentious questions of fact; matter was stood over to 2.30 pm that day, on rather unusual terms. (But | do not say anything more than that, because the appeal was not pressed on this point). Then the matter was heard. It would appear that at that stage rule 9 of Order XXXVI was not complied with. It is clear that directions should have been given on the trial of issues arising from the affidavits, and Mr Kiamba would not have been rushed into this foolhardy statements, which did not tally with this client's affidavit. Indeed, it may have been necessary to consider whether the respondent had certainly rejected the counter-offer of purchase by the appellant. However that may be, the proper course was to give directions as to the trial of the issues, and as to whether rule 10 should be applied, turning the originating summons into a suit. It must have escaped attention all around that the originating summons was no properly grounded. It was brought under order XXXVI rule 3A of the Civil Procedure Rules, and section 97 of the Civil Procedure Act. Rule 3A not relevant as this is not a mortgage dispute, and section 97 does not exist Sec 3A of the Act which replaces section 97, concems the inherent jurisdiction. The originating summons can only be used as the omnibus carrying all inherent matters within it, if provision is so made. Perhaps such provision should be so made; but at present it is not. A suit is defined in the Act as referring to all civil proceedings, summons is prescribed by order XXXVI. In none of the rules, is there a place for a declaration that consent was unreasonably refused. It is not a construction point in rule 5. It is not one of the specific classes of cases prescribed in rules 7,2,3,4 or 5A. Order XXXVI does not apply to this case. For this reason alone in the circumstances of this case, the appeal would have to be allowed, and a suit directed to be brought. Where a question of jurisdiction is concemed, this court must take it Up, whether or not the point was raised below. Itis possible that the originating summons was used, because there are decided cases in England where such a summons had been employed, That may stem from the optional procedure of a suit for a declaration or an originating summons for a declaration which obtained in England before 1964. order 54A of the Rules of the Supreme Court directly provided for a declaration on an originating summons. But this has been repealed. It depends upon the general provisions in the rules, how far an inherent jurisdiction can be ventilated by an originating summons. Itis clear order XXXVI does not prescribe such procedure, and it is therefore necessary in Kenya to commence such matters by a sult p/w kenyelonorg Page 69MINAZI NUJA ES TALES LINITEU VAMDALAL FURSFU! TAM MIS IR ANY FIVE UI FIERS [1900] ERLIC In the result then | would allow the appeal. | would set aside the judgment and orders of the High Court and strike out the proceedings as incompetent. | would grant the costs of the appeal to the ‘appellant, But in so far as the appellant did not take all the points in the High Court which he should have done, each party will bear his own costs in the High Court. Dated and delivered at Mombasa this 22nd day of July, 1986. HG Platt ‘Ag Judge of Appeal REPUBLIC OF KENYA IN THE COURT OF APPEAL AT Mombasa (Coram: Hancox, J A & Platt & Gachuhi, Ag JJ A CIVIL APPEAL NO 47 OF 1986 BETWEEN .. APPELLANT MNAZI MOJA ESTATEDS LIMITED AND AMBALAL PURSHOTTAM MISTRY AND FIVE OTHERS: RESPODENT (Appeal from the adjournment order on cost and ruling of the High Court of Kenya at Mombasa ( Aragon J) dated February 14, 1986 /itthwn konyaloworg ~ Page 749RINAC MUJA ED IAIES LIMIICU VAMBALAL FURONUT TAM MIDI ANU FIVE UIHERS [1¥80] ERLE Civil Case NO 867 ( O S of 1985) JUDGMENT OF GACHUHI, AG JA ‘The facts of this case are set out in the judgment of Platt, Ag JA. There is no need of repeating them In my judgment. However, the manner this case was rushed through is the main complaint by the appellant. The appellant was never made aware of the whole truth of the request as he ought to, and was denied of his right to consider the said request. Just a mere letter to the Mombasa office which was not followed by a reminder while the main office is in Nairobi cannot be a sufficient request and failure to reply cannot be sufficiently stated to be a refusal to grant the consent. There was a rush, | think, to go to court because of the available supporting authorities which certainly overlooked the vital ground under which the matier should have proceeded. In Woodfall on Landlod and Tenant 26th edition vol. 1 at page 568 paragraph 1344 under the remedy for “unreasonable refusal to consent’, there is this: “The lessor must be given a reasonable time during which he can consider the request. When the lessee considers a refusal unreasonable or thinks that some term which the lessor seeks to impose as a condition of giving the consent is unreasonable, it is open to him to seek a declaration from the court instead of compelling the assignment in defiance of the lessor, a lessor cannot avoid such a declaration by refusing or falling to give any explanation of or reason for the refusal. In the High Court such declaration may be either in an action commenced by writ or on originating summons under order 54A. In Halsbury's Laws of England 4th edition, paragraph 368 at page 287 under the subheading * Unreasonable withholding of consent’ there is: * The tenant is bound to ask for the consent before he assigns, even though it could not properly be refused , and to give the landlord a reasonable time in which to consider the matter. If through forgetfulness he omits to do so, he becomes liable to forfeiture. The landlord is entitled to be told the true nature of the transaction to which he is asked fo consent, and to withhold consent until the terms are disclosed.” Reading order 7/1-7/1 of the Supreme Court Practice 1973 at page 58, order 54 A was revoked in 1962 and not replaced. It follows that the action can safely be filed in the High Court for declaratory order by way of plaint, though originating summons is sometimes used in England. There is no specific provision under order XXXVI of the Kenya Civil Procedure Rules to file proceedings for declaration by originating summons, but under the amended rule 10 of the same order if an originating summons has been filed, it can proceed as if the suit was commenced by plaint and the affidavit fled be treated as pleadings. This rule should be strictly complied with. The plaintiff seeking ip: kenyaloworg ~ Page 8/8MINALI MUJA ES1ANED LIMITEU V AMBALAL FURSMUI IAM MID IRY ANU FIVE UI HENS [1880] ERLE declaration has to satisfy the court through evidence that prior to coming to court, consent was validity applied for and the answer or reply given by which the applicant hold that consent is unreasonably withheld, ‘The appolant was denied all this due to wrong procedure followed and compelled to file his affidavit in the morning while the matter was to be decided in the afternoon of the same day on the evidence in the affidavits. From the papers filed and the submissions made by the counsel for the respondent it does not appear. To my mind, that consent was unreasonably withheld prior to coming to court. While it is appreciated that the court aim at the expeditious disposal of the suits yet at times such expeditious disposal of the suits may cause injustice. The court never appreciated that all the facts were not before it and the counsel never referred to court of the procedure to, be adopted. It was wrong to proceed as the court did without the appellant being properly heard, on a matter which affected its rights. In my view, the appellant's complaint is justified. | would also allow the appeal with costs and sot aside the order of the High Court. | would also agree with the proposed order regarding costs in the High Court. The plaintiff can start the matter afresh Dated and delivered at Mombasa this 22nd day of July, 1986. JM Gachuhi ‘Ag Judge of Appeal I certify that this is a true copy of the original. DEPUTY REGISTRAR a EA Nhs vine ne ssion score an mac cine cat Sen dione anes by Kaya Law nd ain Cn drier cteoann at insstrd outs ations onaied rian sama ore es fom ay enya reno. fend ur Bay Pal Lane ptm konyatanora - Poge 919