[2023] KEELC 21663 (KLR)

Githere v Mwangi & 2 others (Environment & Land Case 25 of 2023) [2023] KEELC 21663 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21663 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 25 of 2023

A Ombwayo, J

November 16, 2023

Between

Jayne Wanjiku Githere

Plaintiff

and

Mary Wanjiru Mwangi

1st Defendant

Dawad Petroleum Limited

2nd Defendant

The Land Registrar, Naivasha

3rd Defendant

Ruling

1. Jayne Wanjiku Githere has come to court against Mary Wanjiru Mwangi and 2 others by way of plaint claiming that the defendant caused her land to be transferred fraudulently. She prays for a declaration that the Plaintiff is the legal proprietor of all that parcel of land known as Kijabe/Kijabe Block 1/1091. She seeks an order of rectification of the land register in respect of Kijabe/Kijabe Block 1/1091 to reflect the Plaintiff as the registered proprietor.

2. Moreover, an order for rectification of the land register cancelling the title and registration of parcel of land known Kijabe/Kijabe Block 1/1091 in the name of the 2nd Defendant.

3. Last but not least, she seeks a permanent injunction to restrain the Defendants from interfering with the Plaintiffs right of quiet possession to all that parcel of land known as Kijabe/Kijabe Block 1/1091. Plus Costs.

4. The plaintiff has also filed a Notice of motion dated 27th September 2023 seeking orders that t he hearing and determination of this suit, the Court be pleased to issue an injunction restraining the Defendants whether by themselves, their agents and servants from transferring, selling/ interfering, alienating, disposing, charging, entering into, remaining on or otherwise dealing with all that parcel of land known as Kijabe/Kijabe Block 1/1091.

5. Mandatory injunction compelling the 3rd Defendant to produce/avail to the Court all the documents including the parcel filet green card, consents, receipts, valuations, register, court order, transfer and any other documents used by the3'd Defendant to transfer and register Kijabe/Kijabe Block 1/1091 in the name of the 1st Defendant and subsequently in the name of the 2nd Defendant. Plus Costs.

6. The application is based on grounds that the Plaintiff is the legal proprietor of the property known as Kijabe/Kijabe Block 1/1091 and has been in possession of the said property since the year 2009.

7. The Defendants have fraudulently transferred the aforesaid Plaintiff's property without her knowledge or consent.

8. The purported transfer of Kijabe/Kijabe Block 1/1091 by the defendants is fraudulent because;

9. The Plaintiff has never signed any agreement to sell Kijabe/Kijabe Block1/1091

10. The Plaintiff has never signed any transfer forms transferring Block 1/1091.

11. The Plaintiff has never applied for Land Control Board consent to sell or otherwise transfer Kijabe/Kiijabe Block 1/1091.

12. The plaintiff contends that the Defendants do not have any lawful justification for issuing or procuring or making any document purporting that the 2nd Defendant is the registered proprietor of the suit property. Unless restrained by the Court, the Defendants are likely to sell, alienate, dispose or charge the property to unsuspecting innocent parties thereby making it very difficult if not impossible for the Court and the Plaintiff to reverse the fraudulent registration.

13. The defendants are likely to enter upon, construct, remain on or otherwise interfere with the Plaintiff's quiet possession of the suit property.

14. The 3rd Respondent has refused/declined to avail copies of the parcel file, green card, consents, receipts, valuations, register court order, transfer and any other documents used to transfer and register Kijabe/Kijabe Block 1/1091 in the name of the Defendant and subsequently in the name of the 2nd Defendant.

15. To enable the Plaintiff protect and enforce her rights over the suit Plaintiff requires the Defendant to produce to the Court all the documents including the parcel file, green card, consents, receipts, valuations, register, court order transfer and any other docun1eNs used by the 1st Defendant to transfer and register Kijabe/Kijabe Block 1/1091 in the name of the -1st Defendant and subsequently in the name of the 2nd Defendant. It is in the interests of justice that the prayers sought be granted. The 1st respondent did not file a response. The 2nd respondent filed a replying affidavit whose import is that he is abona fide purchaser for value without notice having purchased the land from the 1st respondent. He did due diligence and paid all necessary fees as required by law.

16. I have considered the evidence on record and do find that the plaintiff has established a prima facie case with a likelihood of success as there is no evidence of the duly signed transfer instrument the consent of the Land Control Board and an agreement of sale between the plaintiff and the 1st defendant and the 1st defendant has not responded to the allegations by the plaintiff.

17. On the issue of irreparable harm, I do find that there is danger of the property being sold charged or leased and yet the plaintiff is in possession. The balance of convenience tilts towards granting the injunction sought as the plaintiff will be more inconvenienced if the orders are not granted and ultimately succeeds in the suit. I do grant an injunction restraining the Defendants whether by themselves, their agents and servants from transferring, selling/ interfering, alienating, disposing, charging, entering into, remaining on or otherwise dealing with all that parcel of land known as Kijabe/Kijabe Block 1/1091. The plaintiff is also restrained from dealing with the property in any manner and that all parties are restrained from developing the suit property. Costs in the suit.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF NOVEMBER, 2023. A. O. OMBWAYOJUDGE