[2015] KEHC 4253 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO.173 OF 2014

ANTONY ISAAC MWARO (suing as the Legal Administrator of the Estate of

FERDINAND KAHINDI MWARO (DECEASED)..........................................PLAINTIFF

=VERSUS=

1. DIAMOND TRUST BANK KENYA LIMITED

2. SWALEH MOHAMED HEMED

3. REGISTRAR OF TITLES, MOMBASA.............................................DEFENDANTS

R U L I N G

Introduction:

1. What is before me is the Application by the Plaintiff dated 23rd September 2014 seeking for the following orders:

(a) A temporary order of injunction against the 1st Defendant, by itself, is agents or servants or otherwise howsoever from selling, wasting by public auction or in any way from dealing with plot NO. Kilifi/Ngerenyi/909 being the suit premises until the hearing and determination of this suit.

(b) Costs of and incidental to these proceedings.

(c) Interest on (4) above at court rates;

(d) Any other or further relief this honourable court may wish to award.

The Plaintiff's/Applicant's case:

2. The Plaintiff has deponed that he is the legal administrator of the Estate of Ferdinand Kahindi Mwaro, the registered proprietor of parcel of land number Kilifi/Ngerenyi/909 ( the suit property).

3. According to the Plaintiff, the deceased agreed to guarantee the 2nd Defendant in security of a loan from the 1st Defendant and charged the suit property; that it was a term of the agreement that after the 2nd Defendant repays the loan, the title deed would be discharged and returned to the deceased and that the Defendant deliberately and flagrantly failed to honour the agreement.

4. It is the Plaintiff's case that the 2nd Defendant repaid the loan to the 1st Defendant and fraudulently transferred the suit property in his name and then further charged the property on 28th July 2011 for a loan of Kshs.2,300,000.

6. It is the Plaintiff's case that the 2nd Defendant does not have a legal or equitable interest in the land and that the 1st Defendant remedy lies as against the 2nd and 3rd Defendants in damages.

7. It is the Plaintiff's position that the 2nd Defendant took advantage of the demise of the deceased and unlawfully dis-entitled him and transferred the suit property to himself and then unlawfully charged it to the 1st Defendant.

The 1st Defendant's/Respondent's case:

7. The 1st Defendant's Company Secretary stated in his Replying Affidavit that the 2nd Defendant is the registered proprietor of the suit property and that at the instance of the 2nd Defendant, the 1st Defendant extended to him various banking facilities.

8. According to the Company Secretary, the 2nd Defendant charged the suit property vide a legal charge dated 19th August 2008 and a further legal charge dated 28th July 2011; that before disbursing the facility, the Bank undertook due diligence by conducting various searches and that as per the official search of 15th August 2014, the 2nd Defendant is still the registered proprietor of the suit property.

9. It is the 1st Defendant's case that the 2nd Defendant is in arrears to the tune of Kshs.909,886. 78 as at 27th February 2014 and that despite repeated demands to the 2nd Defendant to settle the arrears, he has failed to do so.

10. It is the 1st Defendant's position that the 2nd Defendant acquired a valid title to the suit property on 17th July 2008 before the demise of Ferdinand Kahindi and that once property is registered in the name of a party, he is deemed to have absolute and unfettered ownership of the same.

Submissions:

11. The Plaintiff's advocate submitted that the Plaintiff has proved that it is him and his family who use the suit property as a family graveyard; that the transfer of the suit property to the 2nd Defendant was fraudulent and that the balance of convenience tilts in favour of the Plaintiff.

12. The 1st Defendant's advocate submitted that the Plaintiff has failed to lay evidence to support his claim that there was an act of fraud by the 2nd Defendant; that the evidence adduced by the Plaintiff is contradictory and at cross purpose where he alleges that the suit property was transferred after the demise of Ferdinand Mwaro and that the late Ferdinand Mwaro transferred the suit property for a consideration of Kshs.500,000.

13. It is the 1st Defendant's advocate submissions that the Plaintiff has not established a prima facie case with chances of success.

Analysis and findings:

14. The Plaintiff has not denied that the 2nd Defendant charged the suit property to the 1st Defendant. The Plaintiff has also not denied that the 2nd Defendant has fallen in arrears and that the 2nd Defendant has been served with statutory notices by the 1st Defendant.

15. According to the affidavit of the Plaintiff, “the 2nd Defendant flagrantly took advantage of the demise of the deceased and unlawfully disentitled him and transferred the deceased title to his name and unlawfully charged the title.”.

16. Annexed on the Supporting Affidavit is the copy of the Title Deed that was issued to the late Ferdinand Kahindi Mwaro on 28th April 1994. The Plaintiff has not deponed that he is in possession of the original title deed.

17. The Certificate of Death and the limited letters of administration annexed on the Plaintiff's Affidavit shows that the deceased died on 10th September 2009.

18. The Certificate of Search and the Copy of the Title Deed for Kilifi/Ngerenyi/909 annexed on the 1st Defendant's Affidavit shows that Title Deed in respect to the suit property was registered in favour of the the 2nd Defendant on 17th July 2008 whereafter he charged it to the 1st Defendant.

19. The evidence before this court therefore shows that the suit property was registered in favour of the 2nd Defendant before the demise of Mr. Ferdinand Kahindi and not after his death as alleged by the Plaintiff.

20. Having been satisfied that the 2nd Defendant is the registered proprietor of the suit property, the 1st Defendant charged it on 14th October 2008 and 5th August 2011.

21. Indeed, considering that no evidence has been placed before me to show that the suit property was fraudulently transferred to the 2nd Defendant who then charged it to the 1st Defendant, and in the absence of privity of contract between the 1st Defendant and the Plaintiff, I find and hold that the Plaintiff cannot, prima facie, challenge the 1st Defendant's statutory power of sale conferred to it by the charge documents and the Land Act.

22. In the premises, I find and hold that the Plaintiff has failed to demonstrate that he has a prima facie case with chances of success. The Plaintiff's remedy, if at all, is as against the 2nd Defendant if he proves at trial that indeed Ferdinand Kahindi Mwaro did not transfer the suit property to the 2nd Defendant. Having conducted a search and found that the property was registered in the name of the 2nd Defendant, the 1st Defendant was entitled to charge it.

23. For those reasons, I dismiss the Plaintiff's Application dated 23rd September 2014 with costs.

Dated and delivered in Malindi this 26th day of June,2015.

O. A. Angote

Judge