[2023] KEELC 21227 (KLR)

Gatuma v Gatuma & 2 others (Environment & Land Case 21 of 2022) [2023] KEELC 21227 (KLR) (31 October 2023) (Ruling)

Neutral citation: [2023] KEELC 21227 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 21 of 2022

MD Mwangi, J

October 31, 2023

Between

George Gitau Gatuma

Plaintiff

and

Augustine Mbai Gatuma

Defendant

and

John Mukiri Mbai

1st Respondent

Nancy Njoki Ng’Onda

2nd Respondent

(In respect of the Plaintiff’s Amended Application dated 10th May, 2023)

Ruling

Background 1. This Court on 21st February, 2023 partially allowed the Plaintiff’s Application granting the Plaintiff leave to substitute the deceased Defendant with the Administrators of his estate – John Mukuri Mbai, Michael Kariuki Mbai and Nancy Njoki Ng’onda. Further, leave was granted to amend the Plaint appropriately and join the National Land Commission (NLC) as an Interested Party.

2. Since prayers 5, 6, 7, 8 and 9 in the application involved the National Land Commission, the Court ordered that NLC be joined as an Interested part to the suit and the application. Further that the said prayers be heard after the amendment of the Plaint and joinder of NLC in the matter.

3. The Court confirms that NLC was indeed joined as an Interested Party in this case and actually entered appearance. On 15th June, 2023, the Advocate for NLC, Ms. Wanini informed the Court that they were not opposed to the Plaintiff’s application.

Court’s Directions: 4. The Court’s directions were that the Plaintiff’s Application be canvassed by way of written submissions. The Plaintiff and the 1st Respondent filed their respective submissions which the Court has had time to peruse and consider.

Issues for Determination: 5. Having considered the Plaintiff’s Application, the reply by the 1st Respondent and the submissions filed herein, the only issue for determination in my opinion is whether the Orders seeking to restrain the Defendants from collecting or withdrawing the Compensation money in respect of 0. 0702 hectares out of L.R. No. Dagoretti/Uthiru/281 deposited with Co-operative Bank should be issued.

Analysis and Determination: 6. I must point out that prayers No. 5 and 7 were sought pending inter partes hearing and determination of the application. The same are therefore spent. Prayer 9 on the other hand is directed against the National Land Commission (NLC). The prayer is that ‘the Applicant be supplied with the compensation and land acquisition information and documents in respect of 0. 0702 hectares of land from Dagoretti/Uthiru/281 by the National Land Commission of Kenya.’

7. As noted above, the Advocate for the National Land Commission informed the Court that NLC was not opposed to the application. Accordingly, that prayer is allowed. NLC is directed to provide the Applicant with the information on land Acquisition and Compensation in respect of 0. 0702 hectares out of Land Reference No. Dagoretti/Uthiru /281.

8. Prayers number 6 and 8 are one and the same. They are the main prayers in the Plaintiff’s application under consideration. The prayers are first and foremost that, the Respondents herein by themselves in their personal capacities or as administrators of the Estate of the late Augustino Mbai Gatuma, be restrained by way of an injunction from collecting and or withdrawing the sum of Kshs 27,475,439. 80 which was deposited or transferred to account number 01109038555600 – Co-operative Bank of Kenya. Secondly the Plaintiff prays that the National Land Commission and the Co-operative Bank of Kenya are hereby ordered not to release any sums of money in their accounts regarding compensation for the compulsory acquisition of 0. 0702 hectares of Land from Dagoretti/Uthiru/281 currently registered in the name of Augustino Mbai Gatuma either to the Respondents herein, their servants, agents or employees, pending the hearing and determination of this suit or further orders of this Court.

9. The Plaintiff and the deceased Augustino Mbai were brothers. The Plaintiff’s case is that the deceased though registered as the proprietor of the suit properties including L.R. No. Dagoretti/Uthiru/281 was registered as such in trust for himself and his siblings. It was when the deceased started handling the suit properties in a manner adverse to the interests of the Plaintiff and other siblings that this suit was filed in the year 2005 in the High Court at Nairobi as HCCC No. 113 of 2005. Restraint Orders had been issued in the case to preserve the suit properties.

10. It is on record that in the year 2005, specifically on 10th June, 2005, Justice J.B. Ojwang, then sitting in the High Court delivered a ruling allowing the Plaintiff to bury his daughter on the parcel of Land Dagoretti/Uthiru/281. The Applicant in his submissions has substantially quoted the ruling by Justice J.B. Ojwang.

11. The 1st Respondent in his response and submissions insisted that the money held in the account of the Respondent is compensation for structural developments and not the land. He further alleges that similar compensation was made to every member of the family who was resident on the same property. He submits that the Applicant is deliberately creating a wrong impression by failing to state clear facts and disclosing to the Court that the Respondent’s father’s estate has nothing to do with the Applicant.

12. Considering the previous determinations made by my predecessors in this matter, and the peculiar circumstances of this case, there are serious issues that this called upon to determine. Those issues however, can only be determined after a full hearing to enable the Court conclusively pronounce itself on the dispute between the parties here who are also family members.

13. I associate with the findings of Justice J.B. Ojwang, in the ruling of 10th June, 2005. The learned judge identified 4 uncontroverted issues as follows:i.Family members born on the disputed Lands, have over the years increased in numbers and their interests have come into conflict over the main economic resource – the Land itself;ii.The Lands, the subject of competing interests are generally, and somehow all registered in the name of one man – the Defendant (now deceased);iii.The Defendant wants his title to be judged from the fact of official registration alone; he wants to rely on the official title documents as conferring indefeasibility of title; andiv.By contrast, the Plaintiffs go back to history and the social reality in the context of which those Lands came to be registered in the name of the Defendant.

14. Justice J.B. Ojwang therefore concluded that:“The prima facie merits of this matter which most likely will remain unchanged even at the hearing of the main suit, dictate that the Plaintiff be allowed to proceed with the burial of his daughter as he intends”.

15. The issues as identified by Justice J.B. Ojwang way back in the year 2005 remain as they were then.

16. Justice Ransely too had on 16th March, 2005 in a ruling delivered on that date observed that the Plaintiff had a prima facie case with a probability of success and proceeded to grant an order of interlocutory injunction against the Defendant pending hearing and determination of the suit.

17. I see no justification whatsoever to depart from the reasoning of my predecessors. That was indeed my reason for allowing the revival and reinstatement of this suit and the substitution of the deceased Defendant with the administrators of his estate. It is necessary that this case be determined on its merits after a full hearing.

18. Though the 1st Respondent in his response and submissions insisted that the money paid by NLC was compensation for structural developments and not the land itself he did not provide the evidence to support the averment. The Plaintiff/Applicant on his part asserted that the compensation was for the land. Whether the compensation money was paid for structural developments or for the land is an issue that can only then be determined upon the full hearing of the suit.

19. For the foregoing reasons, I allow prayers 6 and 8 of the application by the Plaintiff/Applicant pending the hearing and determination of this suit or until further orders of the Court.

20. Accordingly, the Plaintiff’s amended application is allowed in the following terms:a.The Respondents herein by themselves in their personal capacities or as administrators of the Estate of the late Augustino Mbai Gatuma, their servants, agents or employees be and are hereby restrained by way of an injunction from collecting and or withdrawing the sum of Kshs 27,475,439. 80 which was deposited or transferred to account number 01109038555600 – Co-operative Bank of Kenya until the hearing and determination of this suit or further orders of this Court.b.The National Land Commission and the Co-operative Bank of Kenya are hereby ordered not to release any sums of money in their accounts regarding compensation for the compulsory acquisition of 0. 0702 hectares of Land from Dagoretti/Uthiru/281 currently registered in the name of Augustino Mbai Gatuma either to the Respondents in their personal capacities or as administrators of the Estate of the late Augustino Mbai Gatuma herein, their servants, agents or employees, pending the hearing and determination of this suit or further orders of this Court.c.The National Land Commission be and is hereby ordered to supply the Applicant with information and documents in respect to the compulsory acquisition and compensation of the 0. 0702 hectares of Land from Dagoretti/Uthiru/281. d.The costs of this application shall be costs in the cause.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF OCTOBER, 2023M. D. MWANGIJUDGEIn the virtual presence of:Mr. Omondi holding brief for Mrs Kahindi for the 1st RespondentNo appearance for the Plaintiff/Applicant and PLCYvette: Court Assistant.M. D. MWANGIJUDGE