[2020] KEELC 3514 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. CASE NO. 389 OF 2017

JAMES JOSIAH MUCHIRI............................................................PLAINTIFF

VERSUS

KENYA ANGLICAN MEN’S ASSOCIATION SACCO.....1ST DEFENDANT

JOHNSON KURIA MWANGI.............................................2ND DEFENDANT

PATRICK MACHARIA........................................................3RD DEFENDANT

AARON WANYAHORO.......................................................4TH DEFENDANT

RULING

1. In the Amended Notice of Motion dated 16th April, 2018, the Plaintiff is seeking for the following orders:

a. That a permanent injunction be issued preventing the Defendants from partitioning and transferring the property Land Reference Number 8826/6 pending hearing and determination of the suit.

b. That a mandatory injunction be issued compelling the Defendants to recognize the Plaintiff as the legal purchaser of Plots No. 121 and 122 in Land Reference Number 8826/6.

c. That the costs of this Application and of the entire suit be awarded to the Plaintiff/Applicant.

2. The Application is supported by the Affidavit of the Plaintiff who has deponed that he bought two ½ acre plots from the 1st Defendant; that he was allocated plot numbers 121 and 122 by way of balloting and that he made all the required payments towards purchasing the plots.

3. The Plaintiff finally deponed that despite his continued requests for the Application forms, the 1st Defendant has refused to issue him with the same.

4. In reply, the 2nd Defendant deponed that the 1st Defendant is not the registered owner of land known as L.R. No. 8826/6 (the suit property); that the Plaintiff never bought two plots from the 1st Defendant as alleged; that the payments that the Plaintiff is alluding to were made by all the members of the 1st Defendant in an effort to pool funds together for purposes of purchasing land and that the allotment of the plots was on a first come first served basis.

5. According to the 2nd Defendant, the 1st Defendant had set specific dates being 11th July, 2016 and 2nd July, 2016 for purposes of submitting certain documents by the members of the 1st Defendant and that the 1st Defendant allocated plots to members who had met the required conditions, including being a paid up member.

6. According to the 2nd Defendant, the Plaintiff did not attend any of the meetings that were convened by the 1st Defendant, neither did he submit the requisite documents; that the Plaintiff was left out as all the plots available were allocated to other members who had fulfilled the required conditions and that the Plaintiff’s contributions are available for a refund at any time.

7. In his submissions, the Plaintiff’s advocate submitted that the Plaintiff has annexed on his Supporting Affidavit the ballot cards for plot numbers 121 and 122 together with receipts issued by Kenya Anglican Men’s Association Sacco and that the receipts shows that the Plaintiff is member number 729.

8. Counsel submitted that the Plaintiff risks losing out on plots he had balloted for and that the Plaintiff will suffer great injustice unless the orders of injunction are issued.

9. On his part, the Defendants’ advocate submitted that the Application is defective because it is supported by an incompetent Affidavit; that the Plaintiff has filed an Amended Affidavit instead of filing a Supplementary Affidavit and that there is no evidence to show that the 1st Defendant is the registered proprietor of L.R. No. 8826/6.

10. Both the Plaintiff’s and the Defendants’ counsels relied on authorities which I have considered.

11. The Plaintiff has deponed that he purchased two plots from the 1st Defendant and was allocated plot numbers 121 and 122 by way of balloting. According to the Plaintiff, the 1st Defendant allowed him to ballot for the two plots after making full payments for the same.

12. The Plaintiff annexed on his Affidavit a copy of the ballot paper from “Kenya Anglican Men’s Association Sacco” for membership number 729. The said ballot paper shows that the Plaintiff balloted for plot numbers 121 and 122.

13. In addition to the ballot paper, the Plaintiff has exhibited receipts showing the payment of Kshs. 230,000 to Kenya Anglican Men’s Association Sacco on diverse dates between 2nd December, 2009 and 30th September, 2010. The said receipts are on account of member number 729 of Kenya Anglican Men’s Association Sacco.

14. The letter dated 1st September 2010 by the 1st Defendant informed the Plaintiff that he was required to pay “the additional sum of Kshs. 25,000 per plot”. In the letter dated 27th June, 2010, the 1st Defendant informed all its members that in order for them to get their Title Deeds, they must be enrolled into the Nairobi Kenya Anglican Men’s Association Sacco.

15. The 1st Defendant has not denied that the Plaintiff is its member number 729, and that he balloted for plot numbers 121 and 122 which is within L.R. No. 8826/6. Although the 2nd Defendant deponed that L.R. No. 8826/6 is not registered in the name of the 1st Defendant, he did not deny that the said land was purchased by the 1st Defendant with a view of sub-dividing it and allocating it to its members on terms.

16. The 1st Defendant having agreed that the Plaintiff is one of the members who contributed money for the purpose of purchasing land, then the Plaintiff has a recognized interest in the land. Indeed, until the Defendants show at trial that the Plaintiff breached fundamental terms that he had with the 1st Defendant in respect to the two plots, and in view of the ballot paper that the 1st Defendant issued to the Plaintiff for the two plots, the Plaintiff has established a prima facie case with chances of success.

17. The 2nd Defendant has stated in his Affidavit that the 1st Defendant is in the process of allocating plots to members, and that in fact, all the plots available have been allocated to other members who had fulfilled the requisite conditions. The 2nd Defendant did not however state if a fresh balloting for the plots was undertaken so as to disentitle the Plaintiff the two plots that he had already balloted for.

18. Considering that the Plaintiff is likely to suffer irreparable damage in the event the title documents in respect to the two plots that he balloted for are issued in the name of another person, and having shown that he has a prima facie case with chances of success, I shall, which I hereby do, allow the Amended Notice of Motion dated 16th April, 2018 as follows:

a. That an injunction be and is hereby issued preventing the Defendants from partitioning and transferring the property Land Reference Number 8826/6 pending hearing and determination of the suit.

b. The Defendants to pay the costs of the Application.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 21ST DAY OF FEBRUARY, 2020.

O.A. ANGOTE

JUDGE