[2012] KEHC 3692 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE 643 OF 2011

GODFREY KARISA MASHANGA............................................................................................................PLAINTIFF

V E R S U S

1. EDMUND DURR (Sued as Trustees of NICE VIEW TRUST

FOUNDATION PHYSICAL PLANNING OFFICER KWALE COUNTY......................................1ST DEFENDANT

2. THE LAND REGISTRAR.......................................................................................................2ND DEFENDANT

3. KWALE LAND REGISTRY ...................................................................................................3RD DEFENDANT

RULING

1. The application for injunction dated 16th December 2011 is brought against the background of a suit filed by the Plaintiff in respect to Kwale/Msambweni ‘A’/2291 (hereinafter the suit property). The application seeks-

(a)That pending the hearing and determination of this suit the Defendant/Respondent by himself his agents and/or servants be restrained from blocking the access alienating, carrying out developments, evicting the Plaintiff, removing any furniture, installations and equipment or in any other manner interfering with Plaintiff’s quiet enjoyment of the suit premises being KWALE/MSAMBWENI ‘A’/2291. ”

2. The Plaintiff was previously the registered owner of the suit property. On 17th March 2010 an agreement was executed between the Plaintiff and the 1st Defendant. It is a short agreement and it helps to reproduce it in full-

“This Agreement is made between:

Dr. Mashanga

-and-

Nice View Trust Foundation

This Agreement is hereby executed on the 17th day of March, 2010.

1. On this date, 17th March 2010, Dr. Mashanga transfers his property with Plot Number 2291 to Nice View Trust Foundation (‘The Trust’), for the use and benefit of The Trust.

2. The parties agree that for the transfer of the aforementioned plot, Nice View Trust Foundation is to provide a Security Fund of 3. 5m Kenya Shillings to the benefit of Dr. Mashanga and his family. Withdraws from this Security Fund can be made at Dr. Mashanga’s request with 1 month’s notice. All interest, resulting in the investment of the Security Fund, will accrue to the benefit of Dr. Mashanga and his family.

3. With respect to the operation of the Nice View Kari Charity Medical Centre, 30% of the Medical Centre’s profit will accrue to the benefit of Dr. Mashanga’s Security Fund and the transfers will made at the end of the each fiscal year – this profit sharing agreement is limited to the period of full-time employment (as a doctor) of Dr. Mashanga, or, while another member of Dr. Mashanga’s family assumes full-time involvement (as a doctor) of Nice View Kari Charity Medical Centre.

As witnessed by the undersigned, the parties have executed this Agreement on the date written above.

Dr. MashangaNice View Trust Foundation

Edmund Durr

…………………………..………………………….

Witnessed by:

Ralf EckeyGudrun Durr

………………………..……………………….”

3. According to the Plaintiff there was no intention that the proprietory rights over the suit property was to transfer from the Plaintiff to the 1st Defendant. That the agreement was prepared for the sole intention of attracting donor funding.

4. It is the Plaintiffs contention that the 1st Defendant, with the help of the 2nd and 3rd Defendant, fraudulently transferred ownership of the suitland to the 1st Defendant. The Plaintiff alleges that the 1st Defendant tricked him into executing a transfer which was filled in pencil and was never intended to be lodged for registration.

5. On his part, the 1st Defendant acknowledges the existence of the agreement of 17th March 2010. That pursuant to this the Plaintiff willingly and consciously transferred the suit property to the 1st Defendant. That upon completion of the project the Plaintiff started to make unreasonable demands and to resolve this, another agreement dated 5th December 2011 was reached between the Plaintiff and the 1st Defendant. That handwritten agreement provided options for a solution. That the Plaintiff was to refund Kshs. 35 million being the costs incurred in construction of the medical center and thereby retaking ownership or the 1st Defendant would pay the Plaintiff a sum of Kshs. 3. 5 million in outright settlement of his claims.

6. The Plaintiff is aware of the document of 5th December 2011 and annexed it to his affidavit of 16th December 2011. Although the Plaintiff calls the document a letter drawn by the Defendant, he offers no explanation as to why its contents are recited as an agreement and why he appears to have appended his signature on it. That is curious!

7. Looking at the evidence so far presented by the parties this court does not find that the Plaintiff has established a prima facie case. There is an admission by the Plaintiff that he executed the agreement of 17th March 2010. A plain reading of it is that he was to transfer the suit property for the benefit of the 1st Defendant. How does one assign a different interpretation to Clause 1 of that agreement which reads-

“On this date, 17th March 2010, Dr. Mashanga transfers his property with Plot Number 2291 to Nice View Trust Foundation (‘The Trust’), for the use and benefit of The Trust.

8. The Plaintiff does not deny signing the transfer forms although he alleges that he was tricked into doing so by the 1st Defendant. There will be opportunity to test this allegation at the main hearing but one is tempted to find that the transfer was consistent with the intention reached between the parties on 17th March 2010.

9. What about the more recent document of 5th December 2011? The “Agreement” in my view is not enforceable in a court of law as the signatures of the parties were not attested to by witnesses as required by Section 3(3) (b) of The Law of Contract. Yet it seems to affirm that the parties had earlier willingly agreed and arranged to pass ownership of the suit property from the Plaintiff to the 1st Defendant.

10. So on strength of the evidence alone this court is not inclined to grant an order of injunction.

11. If the Plaintiff is to be believed then he is asking the Court to endorse and recognize an arrangement which was simulated to cheat donor aid. It takes some courage, does it not, to ask a Court sitting in equity to uphold such an arrangement?

12. The result is that the application of 16th December 2011 is hereby dismissed with costs.

Dated and delivered at Mombasa this 26th day of June, 2012.

F. TUIYOTT

JUDGE

Dated and delivered in open court in the presence of:-

Ojode for the Plaintiff

Nyabena for the 1st Defendant

Court clerk - Moriasi

F. TUIYOTT

JUDGE