[2015] KEHC 1665 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

MILIMANI LAW COURTS

ELC NO. 436 OF 2014

DANIEL MWANGI KARANJA.....................................................................PLAINTIFF

VERSUS

RAILWAYS HOUSING CO-OPERATIVE SOCIETY LTD..................1ST DEFENDANT

NDATANI ENTERPRISES COMPANY LIMITED................................2ND DEFENDANT

FUTURE PROPERTY AGENCY LIMITED...........................................3RD DEFENDANT

HENRY NYABUTO BORURA................................................................4TH DEFENDANT

RULING

Coming up for determination is the Plaintiff’s Notice of Motion application dated 18th March 2014 for orders that:

Spent

Spent

An order of temporary injunction restraining the 4th Defendant by himself, his agents, servants and all those claiming under him from erecting any structures on or in any way interfering with the Plaintiff’s Plot No. Mavoko Town Block 52/89 (Plot No. 100) pending the hearing and determination of the suit.

Spent

An order of temporary injunction restraining the 2nd and 3rd Defendants by themselves, their agents, servants and all those claiming under them from selling, erecting any structures or in any way interfering with the Plaintiff’s Plot No. 245 Embakasi pending the hearing and determination of the suit.

The OCPD Embakasi be directed to give effect to the Court Order

Costs be provided for.

The application is premised on grounds that the 1st, 2nd, and 3rd Defendants have illegally and fraudulently sold the Plaintiff’s plot to the 4th Defendant and are likely to sell another plot to potential purchasers. In that event, the Plaintiff stands to suffer irreparable loss as he has already paid the full purchase price for the two plots and started developing one of them.

The application is supported by an affidavit sworn by the Plaintiff wherein he deposes that he purchased 2 plots (No. 83 and 245) from the 2nd and 3rd Defendants and paid a consideration of Kshs. 145,000/-. However that he was never issued with a title despite making several follow-ups. The Plaintiff deposed that in 19th October 2013 he learnt that the 4th Defendant had trespassed on Plot No. 83 later changed to Plot No. 100 and on enquiry; the 4th Defendant claimed ownership thereof and produced a title in his favour. The Plaintiff stated that he learnt that the 3rd Defendant had sold Plot No. 83 to the 4th Defendant and that he was apprehensive that the 1st, 2nd and 3rd Defendants would dispose of Plot No. 245. In support of his case, the Plaintiff annexed copies of receipts evidencing Payment to the 1st Defendant for Plots No. 83 and 245.

Evans Orangi Bogonko, the Chairman of the 1st Defendant swore a Replying Affidavit on 22nd October 2014. The deponent gave a brief history that sometimes in the year 2003, the 2nd Defendant contracted the 1st Defendant as a selling agent of its various properties in Embakasi and Kitengela which were still in blocks awaiting sub-division but informally, the properties had been sub-divided and the plots numbered sequentially pending proper registration. It was deposed that the Plaintiff did indeed purchase Plots No. 100 and 245 within LR. No. 7340/90 Embakasi Phase I and paid for the plots in full.

The deponent explained that the agency contract between 1st and 2nd Defendants became disputed after the 2nd Defendant purported to repudiate it. Subsequently, the 2nd Defendant instituted a suit Machakos HCCC No. 224 of 2009 seeking injunction orders against the 1st Defendant from further sale of the various plots. The 1st Defendant also sought injunction orders restraining the 2nd Defendant from interfering with the properties and transferring the same to persons other than those who had purchased from 1st Defendant. The deponent referred to the Court Order in Machakos HCCC No. 224 of 2009 issued on 15th March 2010 deposing that, it was clear that the Plaintiff herein is a beneficiary from the contents of the said order. Consequently, that any sale and transfer of plots by the 2nd and 3rd Defendants to the 4th Defendant was inconsequential in view of the injunction order. The deponent maintained that from the chronology of events, the 1st Defendant had played no role in the Plaintiff’s woes and therefore an injunction sought against it cannot issue.

The 2nd and 3rd Defendants through their Director, Alexander Muema Muthengi swore a Replying Affidavit on 30th July 2014. The Director denied ever selling plots to the Plaintiff or promising to give title. It was his deposition that the disputed plot belonged to the 4th Defendant.

The 4th Defendant swore a Replying Affidavit on 3rd November 2014 wherein he deposed that he is the owner of the Mavoko Town Block 52/89 having purchased the same from the 2nd and 3rd Defendants. Therefore, that he should not be dragged to any dispute between the Plaintiff and the 1st, 2nd and 3rd Defendants.

The application was canvassed by way of written submissions, which I have carefully read. The dispute before Court is the ownership of a parcel of land known as, according to the Plaintiff, Plot No. 83 also known as Plot No. 100 and according to the 4th Defendant, Mavoko Town Block 52/89. From the pleadings, it emerges that the Plaintiff purchased the parcel from the 1st Defendant whereas the 4th Defendant purchased the same from the 2nd and 3rd Defendants. The 1st Defendant explained the principal-agent relationship it had with the 2nd Defendant and the dispute that arose between them leading to the injunction orders obtained in Machakos HCCC No. 224 of 2009. This relationship, the 2nd Defendant has remained tight lipped to comment on.

Notably, also, despite the 4th Defendant asserting to be the registered owner of the suit parcel, he has failed to avail a copy of the title document and receipts evidencing payment of the purchase price thereof. On the other hand, the Plaintiff exhibited the copies of receipts showing payment of the purchase price for Plot No. 83. The 2nd, 3rd and 4th Defendants have also remained economical with the information as to how the Plaintiff acquired the title to the disputed plot noting that there was an injunction order in favour of the 1st Defendant herein against the 2nd Defendant in in Machakos HCCC No. 224 of 2009. On perusal of the said Court Order, the Plaintiff’s name herein appears in the list of purchasers as No. 38 (Plot 100) and 151 (Plot 245) denoting that he was a beneficiary of the said order. The Court of Appeal in the case of Munyu Maina Vs Hiram Gathiha Maina, Civil Appeal number 239 of 2009 held that:

“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal, and free from any encumbrances including any and all interests which would not be noted in the register.”

In this instance, the 4th Defendant has not even availed the instrument of title as proof of ownership let alone demonstrated how he acquired the title. In addition, Section 26 of the Land Registration Act, 2012 provides that title can be challenged (a) On the ground of fraud, or misrepresentation which the person is proved to be a party; or(b) Where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme.

It is evident that ownership and the legality of acquisition of title are issues that can only be determined at the trial upon further evidence. In the meantime, however, the Court is convinced that the Plaintiff has established an interest over the disputed plot and it would therefore be in the interest of justice that the same be safeguarded pending the determination of the suit. As regards Plot No. 245, it is my finding that the Plaintiff has not laid a basis for the grant of injunction order. His is a mere apprehension that the 2nd and 3rd Defendants will dispose of the same, which cannot be a basis for injunctive relief. In the circumstances, the Plaintiff’s application is hereby allowed to the extent that:

The 4th Defendant is hereby restrained from selling, transferring, carrying on further development, or in any way alienating Plot No. Mavoko Town Block 52/89 (Plot No. 100) also referred to as Plot No. 83 pending the hearing and determination of the suit or until further orders of this court.

Costs of the application shall be in the cause.

It is so ordered.

Dated, Signed and Delivered this 19th day of June 2015

L. GACHERU

JUDGE

In the Presence of:-

………………………………………For the Plaintiff

…………………………………….For the 1st Defendant

..................................................For the 2nd and 3rd Defendants

..................................................For the 4th Defendant

Hilda: Court Clerk