[2010] KEHC 3880 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 277 of 2007

JANE WANGUI NGUGI

DANIEL KAMAU NGUGI ………………………………………PLAINTIFFS

VERSUS

KARANJA KARIUKI…………………………………………1ST DEFENDANT

HARRISON MUITA KARIUKI…………………………….2ND DEFENDANT

JOSEPHAT NGANGA KARIUKI …………………………..3RD DEFENDANT

R U L I N G

1. The suit herein was commenced by way of a plaint dated 18/04/2000 and filed in court on the same day. The dispute concerns a parcel of land known as Kiambaa/Kihara/832 situate within Kiambu District. The Plaintiff alleged that the Defendant had colluded with the officers at the Kiambu District Lands Registry to unlawfully subdivide/register the said parcel of land (suit land) in their own names. The Plaintiff prayed for judgment against the Defendant for:-

(a)The Defendants, their relatives, agents, employees and/or third parties be permanently restrained from interfering with the Plaintiff’s quiet enjoyment of parcel No. Kiambaa/Kihara/382.

(b)The Land Registrar, Kiambu be ordered to register the Plaintiff and her son as beneficial owners of parcel No. Kiambaa/Kihara/382.

(c)Cost of this suit be provided for.

(d)Any other relief and/or orders of this Honourable Court to be issued as may be deemed fit under the circumstances.

2. Together with the plaint, the Plaintiff filed an application brought by way of Chamber Summons under Order XXXIX Rules 1, 2, 3 and 9 of the Civil Procedure Rules, Section 159 of the RLA and Section 3A of the Civil Procedure Act and all other enabling provisions of the law seeking ORDERS:-

(a)THAT, this application be heard during the High Court Vacation.

(b)THAT,this application be heard ex-parte in the first instance in view of its urgency.

(c)THAT, the Respondents/Defendants, their agents, servants, relatives and/or in any other third person(s) be restrained by way of an injunction from interfering with the Applicant’s/Plaintiff’s enjoyment of land parcel No. KIAMBAA/KIHARA/382 until the matter herein is heard and determined.

(d)THAT,the Applicant/Plaintiff and her son DANIEL KAMAU NGUGI be registered as beneficiaries of parcel No. KIAMBAA/KIHARA/382.

(e)THAT, the costs of this application be provided for.

3. The Plaintiff appeared ex-parte before the court on 18/04/2000 and obtained a temporary order of injunction which was confirmed on the 25/05/2000 in the following terms:-

“THAT the Respondents/Defendants, their servants, relatives and/or any other third person(s) be and are hereby restrained from interfering with the Applicants/Plaintiffs quiet enjoyment of land parcel No. KIAMBAA/ KIHARA/382 till the hearing of this suit or further orders of the court.”

4. The above order was issued on the 9/06/2000. It is this order which is the subject of the Defendant’s application dated 25/01/2007 brought under Order XXXIX of the Civil Procedure Rules, Section 138(2) of the RLA Cap 300, Sections 3 and 3A of the Civil Procedure Act and all enabling provisions of the law seeking orders:-

1. That this application be certified urgent and be heard ex-parte in the first instance.

2. That the ruling/order made by this Honourable Court on the 18th day of April 2000 be discharged and or set aside.

3. That the restriction burdening parcel number known as KIAMBAA/ KIHARA/382.

4. That the costs of the application be provided for.

5. The application is supported by the grounds on the face and by the supporting affidavit sworn by Harrison Muita Kariuki. The gist of the Plaintiff’s averments is that the orders of 18/04/2000 were issued on the basis of misdirections perpetrated by the Respondents who had applied for and obtained letters of administration in respect of the estate of Ngugi Kamau (deceased) who was a brother to Harrison Muita Kariuki, the 2nd Defendant herein. From the supporting affidavit, the dispute in this case has a long history, dating as far back as 1982 when the deceased and the Applicants herein filed land case number 74 of 1982 before the elders. The award of the elders was read by the SRM’s court Kiambu on 26/04/1986 before all the parties. The deponent of the supporting affidavit says there was no appeal against the award by which the deceased Ngugi Kamau was given ¼ share out of the suit land. The deponent says that in or about 1992, the Plaintiffs wrongfully applied for letters of Administration Intestate in the matter of the estate of Ngugi Kamau and subsequently managed to get the whole of the suit land confirmed as part of the deceased’s estate and registered in the joint names of the 4 brothers, that is to say Ngugi Kamau, Karanja Kamau, Harrison Kariuki and Josphat Kariuki.

6. The deponent also says that following the grant of the injunctive orders of 18/04/2000, the Plaintiffs placed a restriction on the suit land. The deponent also says that by an application dated 16/02/2001 filed by the Applicant herein, the Applicant sought revocation of the grant of Letters of Administration granted to the Plaintiffs on 19/08/1997 on the ground that the suit property allegedly owned by the deceased and included as part of the estate of the deceased was registered in the names of Ngugi Kariuki, Josphat Nganga Kariuki and Karanja Kariuki as absolute propertors. The application for revocation was heard and determined by Rawal J in favour of the Applicant. A fresh Grant of Letters of Administration was issued showing the estate property as ¼ share of land parcel Kiambaa/Kihara/382; hence the instant application.

7. The application is opposed. The Replying Affidavit is sworn by Daniel Kamau Ngugi, the 2nd Plaintiff herein. The deponent says that the attempts by the Applicant herein to have the deceased’s share of the suit land is fraught with fraud. Mr. Ngugi deponed that the order revoking the Letters of Administration was later set aside, again by Rawal J on 24/07/2008. The ruling by Rawal J was made in Succession Cause No. 204 of 1997, In the matter of the Estate of Ngugi Kamau (deceased). From the learned Judge’s ruling of 24/07/2008, the summons for revocation of grant was reinstated for hearing interpartes. None of the parties has placed evidence before the court to confirm whether or not the Succession matter has now been concluded.

8. At the hearing of this application interpartes, learned counsel appearing on both sides relied on the parties averments in their respective pleadings. I have now considered this application and the averments made by either party. It would appear to me that whether or not this application succeeds depends very much on whether Succession Cause No. 204 of 1997 has been resolved. I have already stated that none of the parties has placed evidence before me to show that there have been any further proceedings in the said matter since Rawal J’s ruling of 24/07/2008.

9. In light of the above, I do not think that time is ripe for the granting of the orders sought. Accordingly, the Applicant’s application dated 25/01/2008 is dismissed with costs to the Plaintiffs/Respondents. Either party will be at liberty to file fresh applications once the issue raised in Succession Cause No. 204 of 1997 as to ownership of the suit property have been resolved.

It is so ordered.

Dated and Delivered at Nairobi this 22nd day of January, 2010.

R.N. SITATI

JUDGE

Delivered in the presence of:-

Mr. Nyangena (present) For the Plaintiffs/Respondents

Mr. Mwangi (present) For the Defendants/Applicants

Weche – court clerk