[2017] KEELC 3570 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT KISII

CASE NO. 27 OF 2016

ELIJAH OUKO MATAGARO ……………………………..... 1ST PLAINTIFF

BENARD MOEGI OUKO ………………………………...… 2ND PLAINTIFF

VERSUS

ROSELYNE DOLA OUKO ……………………...........….. 1ST DEFENDANT

AARON TAFARI OUKO …………………………...…….. 2ND DEFENDANT

ANDREW ATINDA OUKO ……………………......……... 3RD DEFENDANT

JOHN OTIENO OGALLO ……………….........……….… 4TH DEFENDANT

DORINE ATIENO OTIENO …………………….…..…….. 5TH DEFENDANT

R U L I N G

1. Introduction

The applicants and the 2nd and 3rd respondents are brothers and sons of the late Jason Ouko Atinda (deceased) who died on 2nd February 1996. The 1st respondent was one of the deceased wives and a stepmother to the 1st applicant. The deceased owned several properties including land parcel No. Suna East/Wasweta I/658 measuring 4. 6Ha (hereinafter referred to as Plot No. 658) situated in the outskirts of Migori Township within Migori County. Land parcel Suna East/Wasweta I/658 was registered in the deceased’s name on 15th July 1973. The deceased intended to subdivide Plot No. 658 amongst his children, grandchildren and eventually sell off the remaining portion, if any. However, the deceased died before the subdivision was done. Thereafter, the 1st, 2nd respondents and one David Scott Ongosi (now deceased) having been appointed as the personal legal administrators of the deceased estate were registered as owners of LR Suna East/Wasweta I/658 to hold in trust for the beneficiaries of the estate. David Scott Ongosi later passed on leaving the 1st and 2nd respondents as the registered owners. Subsequently, the 1st, 2nd and 3rd respondents subdivided land parcel No. 658 into land parcel No. Suna East/Wasweta I/21046 measuring 1. 4Ha and Suna East/Wasweta I/21047 measuring 3. 2Ha (hereinafter referred to as parcel Nos. 21046 and 21047 respectively). Thereafter land parcel No. 21047 measuring 3. 2ha was sold by the 1st, 2nd and 3rd respondents to the 4th and 5th respondents.

2. The Applicants’ case;

The plaintiffs on 8th February 2016 filed a plaint seeking among other orders the following:

i. A declaration that the subdivision of land parcel No. Suna East/Wasweta I/21046 and Suna East/Wasweta I/21047 was unlawful, irregular and fraudulent and in breach of trust;

ii. A declaration that the sale and transfer of land parcel No. Suna East/Wasweta I/21047 by the 1st, 2nd and 3rd defendants to the 4th and 5th defendants was in breach of trust and the same ought to be declared null and void.

Simultaneously with the plaint the plaintiffs filed a Notice of Motion dated 5th February 2016 pursuant to Section 1A, 1B, 3A and 63 (e) of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules interalia seeking the following order:

a. The honourable court be pleased to grant a temporary order of an injunction restraining the 1st, 2nd and 3rd respondents herein, their agents, servants, representatives and assigns from the subdivision, disposal, excavation, fencing, building and/or in any way whatsoever interfering with land No. 1/21046 until the hearing of this suit

b. This honourable court be pleased to grant an interim order of an injunction restraining the 4th and 5th respondents herein, their agents, servants, representatives, assigns and relatives from the subdivision, disposal, excavation, fencing, building, gaining entry and/or in any way whatsoever interfering with land No. 1/21047 until the hearing of this suit.

c. Officer in charge Migori Police Station to supervise the implementation of the orders.

3. The application was supported by a supporting affidavit sworn by the 1st plaintiff on his own behalf and on behalf of the 2nd plaintiff who had duly authorized the 1st plaintiff to swear the affidavit. The 1st plaintiff stated that the 1st respondent was one of the wives of the deceased and that the deceased owned a number of properties including land parcel No. 658 situated in Migori Town measuring 4. 6Ha. in respect of which the deceased was registered proprietor on 15th July 1973as per the copy of abstract of title (green card) annexed and marked “EOM2”. The 1st plaintiff averred that the deceased intended to subdivide land parcel No. 658 into plots amongst his children and grandchildren but he died before the subdivision was done and attached a copy of the proposed partitions which were marked as “DM3”. The 1st plaintiff averred that his mother, the late Mary Kerubo Ouko died on 24th September 1995 and she was buried on land parcel No. 658situate in Migori.

4. According to the plaintiffs, land parcel No. 658 was registered in the names of the 1st and 2nd respondents and in the name of one David Scott Ongosi who is now deceased on 14th April 2015 by way of transmission on the understanding they would hold the land in trust for themselves and the other beneficiaries of the deceased estate. Attached are copies of the application to be registered by way of transmission and abstract of title and copy of title deed marked “EOM4” and “EOM6” respectively.

5. The plaintiffs further aver that on or about 4th September 2015 the 1st, 2nd and 3rd respondents secretly and without consultation with the family at large as beneficiaries to the land, with intent to defraud, subdivided land parcel No. 658 into land parcel Nos. Suna East/Wasweta I/21046 measuring 1. 4Ha and 21047 measuring 3. 2Ha. Copy of abstract of title (green card) marked “EOM7” annexed. The title deeds in respect of land parcels 21046 and 21047 were issued in the names of Roselyne Dola Ouko and Aaron Tafari Ouko on 21st September 2015 since David Scott Ongosi who was the other administrator had passed away as evidenced by annexture “EOM7”. The applicants contend the 1st and 2nd respondents acted in abuse and breach of their position as trustees.

6. The applicants further aver that the 1st and 2nd respondents in collusion with the 3rd respondent unilaterally and without consultation with the applicants and other beneficiaries and without the authority of all the other beneficiaries unilaterally and in breach of the trust bestowed upon them opted to sell land parcel No. Suna East/Wasweta I/21047 to the 4th and 5th respondents allegedly for the consideration of kshs. 14 Million as per the agreement of sale dated 19th October 2015 marked “EOM8”. The 1st, 2nd and 3rd respondents once more unilaterally decided to apportion the sale proceeds at kshs. 560,000/= to each of the beneficiaries which sum they transmitted to the beneficiaries bank accounts without their authorization. The applicants contend their interest was not in the money but on the land that their late father intended to bequeath to them.

7. It is the plaintiffs’ case that the subdivision of land parcel No. 658 into land parcels 21406 and 21407 coupled with the eventual sale of the new subdivision 21407, contravened the trust bestowed on the 1st and 2nd respondents as envisaged under Section 28 (b) of the Land Registration Act No. 3 of 2012. The plaintiffs thus contend that the new title deeds over land parcels Suna East/Wasweta I/21406 and 21407 were acquired irregularly, unprocedurally and fraudulently and the same are contestable under Section 26 (1) of the Land Registration Act No. 3 of 2012. Further, plaintiffs contend the transfer of land parcel Suna East/Wasweta I/21047 to the 4th and 5th respondents was fraudulent, unlawful and irregular and consequently the transaction ought to be annulled and the title cancelled. The applicants aver the subject land was part of their inheritance which the administrators had no authority to deal with in the manner they did. The applicants thus aver they have demonstrated a prima facie case with a probability of success to warrant the court to grant an order of temporary injunction to preserve their interest until the suit is heard and determined.

8. Response by 1st respondent

The 1st respondent, Rosalina Dola Ouko swore replying affidavit on 22nd February 2016 in response to the plaintiffs’ application. The 1st respondent acknowledges being a co-administrator of her late husband’s estate with the 2nd defendant. The other administrator, David Scott Ongosi has since passed on leaving the 1st and 2nd respondents as the joint administrators of the deceased estate. The 1st respondent affirms that the administrators were registered by way of transmission as the owners of land parcel Suna East/Wasweta I/658 as trustees for the beneficiaries pending distribution. The 1st respondent denied that she executed any agreement for sale and/or agreed to transfer any of the said land. She stated she only surrendered the title to the land to the 2nd respondent on the understanding that it was required by the lands registry to effect the removal of the name of David Scott Ongosi (deceased) from the title and not for any other purpose. The 1st respondent further stated the Power of Attorney she had donated to the 3rd respondent was limited only to allowing the 3rd respondent to represent her in Succession Cause No. 353 of 1997 in Nairobi since she had gotten aged and had challenges travelling to and from Nairobi.

9. She contended the Power of Attorney did not authorize or permit him to sign any sale agreement or transfer documents on her behalf in regard to the suit property. The 1st respondent further avers that she only became aware that a sum of kshs. 560,000/= had been deposited in her bank account with Equity Bank Kisii when the Branch Manager called her to inquire about the source of funds and upon inquiring from the 2nd respondent, it is then he disclosed it was her share out of the sale of land parcel No. 21047. The 1st respondent demanded that the entire Ouko family hold a meeting to discuss the issue of the contested sale but the 2nd and 3rd respondents were uncooperative and the issue never got to be discussed and resolved.

10. Response by the 2nd and 3rd respondents

The 2nd respondent swore a replying affidavit on 4th May 2016 in response to the plaintiffs’ application. He affirmed that he, the 1st respondent and David Scott (deceased) were appointed administrators of the estate of Jason Atinda Ouko (deceased) in Nairobi HC P&A Cause No. 353 of 1997 and were issued with a grant annexed as “AT01” and that land parcel Suna East/Wasweta 1/658 was transferred to them by way of transmission. The 2nd respondent stated that as the administrators and with the consent of the beneficiaries of the estate they caused land parcel Suna East/Wasweta 1/658 to be subdivided into land parcels Suna East/Wasweta 1/21406 and 21407. The 2nd respondent further averred that the administrators with the consent of the beneficiaries sold land parcel Suna East/Wasweta 1/21407 to the 4th and 5th defendants and distributed the sale proceeds equally amongst the beneficiaries and each of them received kshs. 560,000/= after paying kshs. 7,000,000/= as commission to the agents who procured the buyers.

11. The 2nd respondent asserted that the sale to the 4th and 5th defendants was with the consent of all the beneficiaries including the applicants and that the applicants are motivated by malice and ill will in bringing this suit with the object of causing acrimony and despondency in the management of the estate and are estopped from reneging on the arrangement that had been reached with all the beneficiaries. The 2nd respondent further asserted that whatever was done by the administrators was in conformity with the directions given by the High Court Nairobi Probate and Administration Cause No. 353 of 1997 and no interest of any beneficiary was prejudiced.

12. Response by the 4th and 5th respondents

The 4th defendant swore a replying affidavit on behalf of himself and the 5th defendant. The 4th and 5th defendants asserted that they were the registered proprietors of title number Suna East/Wasweta 1/21047 as evidenced by the copy of title annexed as “J001”. The 4th and 5th defendants averred that they were strangers to the averments made in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 in the plaintiffs supporting affidavit. The 4th and 5th defendants state they purchased the suit property from the 1st and 2nd respondents’ and the matters raised in the supporting affidavit were never disclosed and/or part of the negotiations and they could not accordingly respond to the same.

13. The 4th and 5th defendants state that they carried out due diligence before purchasing the property. A search on the property revealed that the property was registered in the 1st and 2nd respondents’ names and the title was absolute and had no encumbrances. Copies of searches dated 25th September 2015 and 30th November 2015 annexed and marked “J003” and “J004” respectively. The 4th and 5th defendants state that they entered into a sale agreement of the suit property where the 1st respondent was represented by the 3rd defendant on the basis of a power of attorney donated to the 3rd defendant by the 1st defendant dated 30th June 2011 (“J005”). The 4th and 5th defendants however disown the agreement exhibited in the plaintiffs supporting affidavit as “EOM8” purporting to have been made between the 2nd and 3rd defendants on the one part and the 4th and 5th defendants on the other part for the purchase of the property at kshs. 14,000,000/=. They aver that the agreement they entered into with the 2nd and 3rd defendants/respondents, the purchase price was kshs. 21,000,000/= as per the copy of agreement dated 18th October 2015 annexed as “J008”.

14. The 4th and 5th defendants state that they paid the full purchase price of kshs. 21,000,000/= to the vendors (2nd and 3rd defendants) through their advocates M/s Omonde Kisera and Company Advocates whereupon the property was transferred to them after all due process was followed. The 4th and 5th defendants deny that they had any knowledge that the property was held in trust for the beneficiaries and assert that they acquired the property for valuable consideration and that they now hold the property as absolute owners and as bonafide purchasers their title is indefeasible. The 4th and 5th defendants further state they have taken possession of the property and have initiated developments thereon and they have further plans to construct buildings thereon.

15. Applicants’ reply

The 1st plaintiff swore a supplementary affidavit where he averred that the 2nd and 3rd defendants/respondents never consulted with all the beneficiaries respecting the sale of land parcel Suna East/Wasweta 1/21047. The 1st plaintiff took issue with regard to the existence of two sale agreements on the same transactions with varying sale prices. The 1st plaintiff noted that out of the sale price a sum of kshs. 7,000,000/= remains unaccounted for by the 2nd and 3rd defendants putting into question their bonafides. The 1st plaintiff further in response to the 2nd and 3rd respondents contention that the present suit is subjudice the proceedings in Nairobi HC Probate & Administration Cause No. 353 of 1997 averred that following the subdivision of land parcel Suna East/Wasweta I/658 ceased to exist and could not therefore form part of the assets in the contested confirmation of grant in the Probate and Administration Cause No. 353 of 1997 and hence the instant suit cannot be subjudice.

16. Preliminary objection by the 2nd and 3rd defendants

On 9th May 2016 the 2nd and 3rd defendants filed a Notice of Preliminary Objection dated 4th May 2016 simultaneously with their defence. The Notice of Preliminary Objection was in the following terms:-

1. The Notice of Motion dated 5th February 2016 and supported by the affidavit of Elijah Ouko Matagaro sworn on the same day and plaint offends the provision of Order 2 Rule 15 (1) (a), (b) and (d) of the Civil Procedure Rules being that it is an attempt to undermine the proceedings of the High Court in Probate and Administration No. 353 of 1997 which is still pending in court and as such the present suit is subjudice the proceedings in Probate and Administration No. 353 of 1997.

2. This court lacks jurisdiction to grant the application and hear the suit.

On 9th June 2016 when the matter came up for directions before me, I directed that the preliminary objection be argued simultaneously with the plaintiffs’ application dated 5th February 2016. I further directed that the parties argue the preliminary objection and the plaintiffs’ application by way of written submissions. The parties complied with the direction and filed their respective submissions.

17. Submissions analysis and determination

Having considered the application by the plaintiff, the replying affidavits by the respondents, the supplementary affidavit by the plaintiff and the 2nd and 3rd respondents preliminary objection, and the submissions of the parties the following issues arise for determination:

1. Whether the preliminary objection by the 2nd and 3rd respondents is sustainable?

2. Whether the plaintiffs have satisfied the conditions for granting a temporary injunction to warrant grant of interim injunction pending the hearing of the main suit?

18. Preliminary objection

The nature and basis of a preliminary objection was well laid down in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd [1969] E.A 696, where the court held:-

“…a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.

In the judgment of Sir Charles New Bold in the same case he stated thus:-

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued in the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”

In the instant case the 2nd and 3rd respondents have pleaded the suit is subjudice to the proceedings in Nairobi H.C Probate and Administration Cause No. 353 of 1997 but have not presented before this court the facts and issues pleaded in those proceedings for this court to establish whether indeed the instant application by the plaintiff is subjudice.

19. The principle of subjudice is provided for under Section 6 of the Civil Procedure Act Cap 21 Laws of Kenya which provides:-

“6. No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigation under the same title, where such suit or proceedings is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” (Emphasis mine).

20. For the subjudice rule to apply as envisaged in under Section 6 of the Civil Procedure Act above it has to be demonstrated that there is in existence a previous suit where the subject matter is directly and substantially similar as in the subsequent suit and that the parties in the subsequent suit are the same as in the previous suit and further that both courts involved have jurisdiction to grant the relief sought.

In the case of Albert Kigera Karume & 2 Others –vs- Kungu Gatabaki & Margaret Nduta Kamithi (sued as trustees of Njenga Karume Trust) & 5 Others the court held:

“For the principle of subjudice to apply, several requirements must be met. There must be in existence a previous suit or proceeding; the subject matter in question must be directly and substantially in issue in both proceedings, the proceedings must be between the same parties or parties under whom any of them claim; the parties must be litigating under the same parties or parties under whom any of them claim. The parties must be litigating under the same title and finally, both courts must have jurisdiction to grant the relief sought.”

In the case of Wanga –vs- Mugambi & Another EALR [2013] E. A474, Odunga J. observed as follows:-

“Therefore where a party decides to file the suit between the same parties with the same cause of action with either an intention of vexing or annoying his opponent and without pursuing the first suit in the production line to its logical conclusion, amount to an abuse of the process of the court…

At page 485: Odunga J states:-

“It is not the form in which the suit is framed that determines whether it is subjudice but the substance of the suit…”.

21. In the present case the 2nd and 3rd respondents have pleaded that the present suit is subjudice to the proceedings in Probate and Administration No. 353 of 1997. The 2nd and 3rd defendants have argued that the dispute in the instant suit relates to the administration of the estate of Jason Atinda Ouko (deceased) which is the subject of Probate and Administration Case No. 353 of 1997. The subject land parcel Suna East/Wasweta 1/658 which was subdivided into Suna East/Wasweta 1/21046 and 21047 was part of the estate of Jason Atinda Ouko (deceased). The 2nd and 3rd defendants have not explained the circumstances under which parcel No. 658 came to be subdivided. The beneficiaries of the estate have denied they were consulted in regard to the subdivision and sale of parcel No. 21047 to the 4th and 5th defendants which they maintain was in breach of trust and hence unlawful.

22. The plaintiffs contend the instant suit is not subjudice Probate and Administration Cause No. 353 of 1997 arguing that the Probate and Administration Cause No. 353 of 1997 is purely a succession matter and the issues there are different from the issues in the present suit. The 1st plaintiff in the supplementary affidavit sworn on 9th June 2016 under paragraphs 9 and 10 depones as follows:

9. That the subject matter in Nairobi Probate and Administration No. 353 of 1997 is purely a succession matter, where in the confirmation of grant dated 15th March is contested.

10. That the land parcel No. 658 cited in the contested confirmation of grant is now nor existent, further the issue in this matter and the said Nairobi Succession matter are not symmetrical in nature to be classified as subjudice.

23. Considering the plaintiffs claim as set out in the plaint, the plaintiff asserts that it was the intention of their late father to subdivide land parcel No. 658amongst the beneficiaries but he died before he could effectuate the intention. The plaintiffs further assert that the 1st and 2nd defendants were registered as owners of the parcel of land through transmission to hold the land as trustees for the beneficiaries but aver that in breach of that trust they unlawfully subdivided the land and irregularly and unlawfully transferred a portion thereof being parcel No. 21407 measuring 3. 4Ha to the 4th and 5th defendants. It is evident therefore the instant suit raises the issue of trust and seeks a declaration that the sale of parcel No. 21407 to the 4th and 5th defendants was in breach of trust and that the resultant transfer was null and void. Land parcel No. 658having been transferred by transmission to the 1st and 2nd defendant ostensibly to hold in trust for the beneficiaries and the same having been subdivided into parcels 21046and21047 ceased to be available as an asset that could be administered through the pending Probate and Administration Cause No. 353 of 1997.

24. Besides, following the transfer of land parcel Suna East/ Wasweta 1/21407 to the 4th and 5th defendants this property ceased to be part of the estate and cannot properly be a subject in HCP&A No. 353 of 1997 without the 4th and 5th defendants being enjoined in the cause. The issues that arise in the instant suit cannot be said to be directly and substantially in issue in the Probate and Administration Cause. They are different and therefore it is my holding and finding that the instant suit is not subjudice and hence the preliminary objection is not sustainable on that ground.

25. In the preliminary objection the 2nd and 3rd defendants have challenged the jurisdiction of this court. I understand their argument to be that the issues raised by the plaintiff relate to the manner the administrators have managed the estate of Jason Atinda Ouko (deceased) which they state is detrimental to the interests of the beneficiaries. It is their contention these are matters which ought to be handled exclusively by the High Court as they relate to succession and the law of Succession Act, Cap 160 Laws of Kenya reserves all matters relating to succession for the High Court under section 47 of the Act.

26. In the case of Owners of Motor Vessel “Lillians” –vs- Caltex Oil (K) Ltd Civil Appeal No. 540 of 1989 [1989] KLR 1, the Court of Appeal laid a guiding principle on how the court should conduct itself once an issue touching on its jurisdiction is raised. The court rendered itself thus:-

“That a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue straight away on the material before it. Jurisdiction is everything. Without it a court has no power to make one more step. Where the court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law lays down tools in respect of the matter before its moment, the moment it holds that it is without jurisdiction.”

27. Article 162 (2) (b) of the Constitution states that this court shall have jurisdiction over disputes relating to the environment, use and occupation of and title to land. In addition section 13 of Environment and Land Court Act expounds on the jurisdiction of this court as follows:-

“(1) The court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162 (2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.

(2) In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution the court shall have power to hear and determine disputes:

(a) Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining minerals and other natural resources.

(b) Relating to compulsory acquisition of land;

(c) Relating to land administration and management.

(d) Relating to public, private and community land and contracts, choices action or other instruments granting any enforceable interests in land; and

(e) Any other dispute relating to environment and land.”

28. The dispute herein as I have observed earlier involves land No. 658and the specific prayers sought by the plaintiffs in the plaint filed herein dated 5th February 2016 are a declaration that the subdivision of land No. 658into the new land No.1/21046 and Land No. 1/21047are unlawful, irregular, fraudulent and in breach of trust and a declaration that the sale and transfer of land No. 1/21047by the 1st, 2nd and 3rd respondents to the 4th and 5th respondents was in breach of trust and the same ought to be declared null and void; a permanent injunction restraining the respondents from dealing with land No. 1/21047 and land No. 1/21046 and an order of eviction against the 4th and 5th respondents. In my view, these are clearly orders relating to the use, occupation and title to land therefore fall within the jurisdiction of this court. Although land parcel No. 658 may have formed part of the deceased assets in the succession proceedings, once transfer was effected to the administrators they became trustees for the beneficiaries in regard to the property and the subsequent dealings with the property by the administrators would not necessary be subject to the succession proceedings. In the premises I hold that this court has jurisdiction to hear and determine the instant application and I accordingly dismiss the preliminary objection.

29. The injunction application

The plaintiffs application being one for a temporary injunction, the same shall be considered on the well established principles enumerated in the case of Giella –vs- Cassman Brown & Co. Ltd [1973] E. A 358. For the plaintiffs to succeed in the present application, they have to satisfy the court that they have a prima facie case with a probability of success and that unless the orders sought are granted, they will suffer irreparable harm. If the court is in doubt as to the above, the application would be determined on a balance of convenience.

30. The plaintiffs’ case is based on breach of customary trust and fraud. The plaintiffs contention is that land parcel No. 658 belonged to the deceased who intended to subdivide it amongst his children and sell the remaining portion if any. However, this did not materialize as the deceased died before land parcel No. 658 was actually redistributed amongst his beneficiaries. Upon deceased demise, Plot No. 658 was registered in the name of the 1st, 2nd respondents and one David Scott Ongosi (the late) in trust.

31. It is the plaintiffs contention that the 1st, 2nd and 3rd respondents subdivided land parcel No. 658 into land parcel No. 1/21048 measuring 1. 4Ha and land parcel No. 1/21047 measuring 3. 2Ha. That the said subdivision was done secretly and without consultation of all the family members including the applicants. Thereafter, the new subdivision land parcel No. 21047 measuring 3. 2ha was again without consultation of the family members irregularly sold by the 1st, 2nd, 3rd respondents in breach of trust.

32. However the 1st respondent averred in her replying affidavit that she was duped into giving out the title deed of land parcel No. 658 to the 2nd and 3rd respondents. The 1st respondent further contended that land parcel No.658 was sold fraudulently by an abuse of the power of attorney she had granted to enable the 3rd respondent to testify on her behalf in the Nairobi Probate and Administration. Apparently her frequent visits to Nairobi, from Kisii took a toll on her thus the Power of Attorney.

33. In this matter there are two agreements relating to the same sale transaction of land parcel No. 1/21047 which appear to have been duly signed by the parties. One agreement is dated 19th October 2015, wherein the purchase price was kshs. 14,000,000 and another undated agreement annexed to the 4th respondent’s replying affidavit indicating the purchase prices as kshs. 21,000,000. The 2nd and 3rd respondents in their replying affidavit purported to allocate each of the 24 beneficiaries kshs. 560,000 out of the kshs. 14,000,000 purchase price. However they never disclosed/or accounted for the extra kshs. 7,000,000/= paid by the 4th and 5th respondents in the undated agreement. The 4th and 5th respondents deny any knowledge of the agreement for sale dated 19th October 2015. The 2nd and 3rd defendants no doubt did not wish the other beneficiaries to know that the true purchase price was kshs. 21 Million. Why? It does appear there is some explanation to be done and that gives some credence to the plaintiffs and 1st respondent’s assertion that the beneficiaries were not consulted on the subdivision and sale. If they were, there would have been no secrecy on what the true purchase was and if there were any agents all the beneficiaries would have known about them and their terms.

34. The plaintiffs in my view have demonstrated an arguable case that the 2nd and 3rd defendants may have abused the trust entrusted upon them by the beneficiaries and on that basis, I hold the plaintiffs have a prima facie case with a probability of success. In the case of Richard Nyamemba Auka & 2 Others –vs- Josephine Motarohi & 2 Others, Okong’o J. while considering whether a customary trust arose where a father to the plaintiffs sold family land allegedly held by him in trust held as follows:-

“The existence or not of a customary trust is a matter of fact. The alleged trust must be pleaded particularized and proved. See Order 2 Rule 10 of the Civil Procedure Rules, 2010. Section 25 (2) of the Land Registration Act 2012 provides that the rights conferred by registration of a person as proprietor of land does not relieve such proprietor from any duty or obligation to which such person is subject as a trustee. Under section 26 (b) of the Land Registration Act, 2012, Customary trust is classified as an overriding interest which means that it may affect registered land although it does not appear in the register. It follows from the foregoing that if the 1st defendant was registered as the proprietor of Plot No. 6172 to hold under customary trust for her behalf and for the benefit of her children with the 3rd defendant then such registration did not relieve her of her duty to act as a trustee of the said parcel of land. It was not open to her to deal with the property contrary to the terms of the said trust. It is also not open for the 2nd defendant to argue that since the plaintiffs alleged interest in the suit property was not registered against the title of Plot No. 6172 as an encumbrance, the same cannot defeat the 2nd defendant’s interest that he acquired from the 1st defendant. It is not in dispute that the 3rd plaintiff is a polygamist. It is also not in dispute that he was at all material times the owner of a parcel of land known as LR No. West Mugirango/Siamani/5000 (Plot No. 5000) and that he caused the said parcel to be subdivided into three (3) portions namely, LR No. West Mugirango/6172 (Plot No. 6172) which he transferred to the 1st defendant who is his 2nd wife.”

The plaintiffs have contended that Plot No. 6172 and 6174 were transferred by the 3rd plaintiff to his two (2) wives to hold in customary trust for themselves and for their respective children. This sort of customary trust is not unusual. In the case of John Gitiba Buruna & Another –vs- Jackson Rioba Buruna Court of Appeal at Kisumu, Civil Appeal No. 89 of 2003 (unreported) the court upheld the existence of Kuria Customary Law that provides that “a Kuria polygamist is bound by customs to share his land among his wives (houses); that sons of his wives would share between themselves the land that their mother would have been allocated by their father…”

35. In the instant case Plot No. 658 was owned by the deceased and the plaintiffs’ averment that it was the deceased intention to subdivide the land amongst his children has not been disputed. However, the deceased passed on before he could effect the subdivision though he had drawn plans for the proposed subdivision/partitions marked “EOM3” in the applicants’ affidavit. Upon his death LR No. 658 was transferred to the name of the 1st, 2nd respondents together with one David Scot Ongosi (the late). The said respondents held the said LR No.658 in trust and in favour of the deceased beneficiaries who are about 24 in number. The plaintiffs have contended that the subsequent subdivision of LR No. 658 to LR No. 21046 and 21047 and subsequent sale of Land parcel No. 21047 to the 4th and 5th respondents was done in secrecy and the same was fraudulent. The 2nd and 3rd respondents contention that the said sale was consented by all deceased beneficiaries is put into doubt because the 2nd and 3rd respondent have not tabled before this court any document indicating that all the beneficiaries agreed to the alleged subdivision and sale. Furthermore, the said sale of Land No. 21047 is further cast into question whether or not it was above board as there seems to be two sale agreements over the property with varying consideration amounts. As I have observed above these are issues that require further interrogation and/or explanation which can only be done at the trial.

36. Though the 4th and 5th defendants have forcefully argued and submitted that they are innocent and bonafide purchasers for value and that they hold absolute and indefeasible title to the suit property, the court cannot make such definitive findings at this interlocutory stage. The plaintiffs have alleged that the sale and transfer of the suit property to the 4th and 5th defendants was irregular and fraudulent and have sought the cancellation and nullification of the title held by the 4th and 5th defendants. The plaintiffs have challenged the title held by the 4th and 5th defendants on the grounds that it was irregularly and fraudulently obtained. Under Section 26 (1) (a) and (b) of the Land Registration Act, 2012 the title of a registered proprietor can be challenged on:

a. On the ground of fraud and misrepresentation to which the person is proved to be a party; or

b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

Fraud has to be proved by evidence and that can only be done at the trial when parties tender their evidence and are subjected to cross examination.

37. Conclusion

Having regard to all the evidence and material placed before the court, I am persuaded that the plaintiffs’ case is arguable and has a probability of succeeding. However, I am not persuaded I should grant orders of injunction in the terms sought. Instead the order that commends itself is to direct and order, which I hereby do, that the parties maintain the status quo whereby there will be no dealings with land parcel numbers Suna East/Wasweta I/21046 and Suna East/Wasweta I/21047 relating to either subdivision, sale and/or transfer and/or charging of the properties pending the hearing and final determination of the suit. Taking consideration of the nature and circumstances of the matter I order that each party shall bear their own costs for the preliminary objection and the application.

38. It is so ordered.

Ruling dated, signedand deliveredat Kisii this 17th day of February, 2017.

J. M. MUTUNGI

JUDGE

In the presence of:

Mr. O. Kanyangai for the plaintiff

N/A for the 1st defendant

Ms. Mogushe for Omolo for the 2nd and 3rd defendants

N/A for the 4th and 5th defendants

Milcent Court assistant

J. M. MUTUNGI

JUDGE