[2014] KEELC 520 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND DIVISION

ELC. CASE NO. 298 OF 2013

ELIZABETH WAMBUI KIRAGU…… ………..……PLAINTIFF/APPLICANT

VERSUS

TIRUS KAMAU MUTORU……………….......DEFENDANT/RESPONDENT

RULING

Coming before me for determination is the Notice of Motion dated 27th February 2013 in which the Plaintiff/Applicant seeks for orders of temporary injunction restraining the Defendant from interfering with, offering for sale, charging, leasing or in any other manner dealing with all those parcels and sub-division numbers 10723,10724, 10725, 10726, 10727, 10728, 10729,10730, 10731,10732, 10733, 10734 and 10735 all hived from RUIRU KIU BLOCK 2/2820 (hereinafter referred to as the “Suit Property”) pending the hearing and determination of this application and suit together with costs.

The application is supported by the grounds appearing on the face of it together with the Supporting Affidavit of Elizabeth Wambui Kiragu sworn on 27th February 2013 in which she indicated that she is the registered owner of the Suit Property vide Title Deed issued on 2nd September 2010, a copy of which she produced together with a certificate of official search dated 23rd September 2010. She further averred that she has not sold or transferred the Suit Property to anyone. She also averred that one Ndirangu Macharia also claimed to hold title to the Suit Property and that on 16th April 2012, she moved to Chief Magistrate in Thika vide CMCC No. 203 of 2012 to try and stop the said Ndirangu Macharia from alienating the Suit Property but that her suit was dismissed on the ground that the court lacked jurisdiction. She further averred that the said Ndirangu Macharia with the intention to defraud also exhibited a title deed to the Suit Property in his name (copies of which were produced) and proceeded to subdivide the Suit Property on the strength of that title deed. She further disclosed that there is a suit pending in ELC No. 834 of 2012 in which she has sued the said Ndirangu Macharia on the same issue. She further averred that it had come to her knowledge that the said Ndirangu Macharia purported to sell the Suit Property to the Defendant. She produced a copy of the purported Sale Agreement.

The Application is contested. The Defendant filed his Replying Affidavit sworn on 5th April 2013 in which he averred that in the course of October 2012, he was introduced to one Ndirangu Macharia who offered to sell to him the Suit Property. He stated that he visited the Suit Property, saw all beacons, did a search at the Thika Lands Registry on 29th October 2012 which results indicated that the said Ndirangu Macharia was the registered owner and satisfied that the land was clean, he proceeded to enter into a Sale Agreement with the said Ndirangu Macharia for the purchase the Suit Property on 31st October 2012. He further stated that the said Ndirangu Macharia handed to him the following documents relating to the history of the Suit Property:

Ballot paper number 2050

Sale Agreement between Ndirangu Macharia and previous owner dated 7th January 1997

Githunguri Ranching Company Certificate Number b. 6849 dated 8th January 1997 in favour of Ndirangu Macharia

Reciepts from Githunguri Ranching Company dated 7th January 1997

A letter dated 6th July 2010 from Githunguri Ranching Company Limited indicating that Ndirangu Macharia is the owner of the Suit Property

Title Deed in respect of the Suit Property issued on 17th October 2011

He further averred that he proceeded to subdivide the Suit Property into 13 portions in the month of November 2012 of which he has sold and transferred five portions. He also disclosed that he has also sold six other portions to different people. He further averred that during the purchase process, he did not know of any court case or any third party interests and that he came to learn of third party interests on 28th January 2013 when he received a call and the caller informed him that the Suit Property is the subject of a court case. He stated that he did not believe that as he purchased the Suit Property and caused a transfer of the title to his name and further proceeded to subdivide the same at Thika Land Registry while following the laid down procedure and never got any objection during the processes. He further indicated that he believes that the Thika Land Registry holds the proper record for the Suit Property and that the Applicant has no current search thereof. He further argued that he is an innocent purchaser for value and did carry out the necessary due diligence on the Suit Property.

The Plaintiff/Applicant filed her Supplementary Affidavit dated 20th May 2013 in which she stated that the Defendant is not an innocent purchaser for value without notice since he admitted having been made aware of the existence of a dispute over the Suit Property. She further stated that the Defendant could not have acquired good title to the Suit Property as the said Ndirangu Macharia’s title document was altered fraudulently to reflect the same map sheet as her title. She further indicated that she bought the Suit Property from one Joseph Kungu Kamau who was a shareholder of Githunguri Constituency Ranching Company from 1970 and that he handed to her all records and payments he made to that company and that all documents given to the Defendant by Ndirangu Macharia are forgeries.

In deciding whether to grant the temporary injunction, I wish to refer to and rely on the precedent set out in the case of GIELLA versus CASSMAN BROWN (1973) EA 358 in which the conditions for the grant of an interlocutory injunction were settled as follows:

“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

Has the Plaintiff made out a prima facie case with a probability of success? In the case of MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS (2003) KLR 125, a prima facie case was described as follows:

“a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

Looking at the facts of this case, the Plaintiff has produced a copy of her title deed to the Suit Property dated 2nd September 2010 together with a certificate of official search dated 23rd September 2010 showing that she was indeed the registered proprietor of the Suit Property. She also produced a copy of a title deed over the Suit Property in the name of Nidirangu Macharia which she purports to be fraudulent. The Defendant, in his response thereto, stated that he bought the Suit Property from the said Ndirangu Macharia after undertaking the necessary due diligence at the Thika Lands Registry to ascertain the true ownership of the Suit Property. He stated that after confirming that the said Ndirangu Macharia was the bona fide registered proprietor of the Suit Property according to the records at the Thika Land Registry, he proceeded with the purchase transaction and even went ahead to sub-divide and sell portions thereof to other third parties. His main contention was that he is an innocent purchase for value without notice. His other contention was that the Applicant has not produced to this court a current search of the Suit Property which would indicate the current position. There is no question that the issue of ownership of the Suit Property is hotly contested by the two parties to this suit. This issue remains one that cannot be determined at this juncture as it is quite clear that each side has produced title deeds to the Suit Property. This court cannot therefore determine at this interlocutory stage, which of the two competing claims should be upheld. To that extent therefore, I find that the Plaintiff/Applicant has not established a prima facie case with high chances of success at the main trial. That being my finding, I see no need in further interrogating whether the other principles in the Giella Case have been met.

Accordingly, I hereby dismiss this application. Costs shall be in the cause.

SIGNED AND DELIVERED AT NAIROBI THIS _21st ___DAY OF _February___2014

MARY M. GITUMBI

JUDGE