[2019] KEHC 3477 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL AND TAX DIVISION

CIVIL SUIT NO. 174 OF 2018

JIMNAH MUNENE MACHARIA & 30 OTHERS....................................PLAINTIFFS

- VERSUS -

GIDEON NJUGUNA THIONGO.........................................................1ST DEFENDANT

SIMON MUCHAI GACHURU.............................................................2ND DEFENDANT

DAVID GATHURI MUCHERU...........................................................3RD DEFENDANT

BENARD MWANGI KARUGA............................................................4TH DEFENDANT

RULING

1. All the parties in this action had a noble idea of uplift the economic well being of each one of them. From the affidavits before court it seems that in 1978, or thereabouts, the parties in this case put their resources together and began to purchase properties within Nairobi. From the affidavit evidence it seems the group was in partnerships called Muranga Njumbi and Gikoe Land & Estate.

2. These partnerships acquired properties. The plaintiff listed those properties as:

i. L.R. No. 36 – VII-357 Eastleigh Estate Nairobi.

ii. L.R. NBI Block 83-9 Umoja Estate Nairobi.

iii. L.R. 36/1/9 Eastleigh Estate Nairobi.

3. The perennial problems that plague land buying companies eventually caught up with these partnerships. The plaintiffs allege in the year 2010 the defendants illegally & blocked some shareholders from accessing the running of the partnerships and consequently the said shareholders have been prevented from collecting income of the properties. The plaintiffs also allege that the defendants have taken funds of the partnerships which is in excess of Ksh 10million.

4. The allegations made by the plaintiffs are the basis of seeking by a Notice of Motion application, dated 2nd May 2018, for injunction to restrain the defendants accessing or running one of the properties, namely L.R. No. 36-VII-357 (the property).

5. By that application the plaintiffs also seek an order that the court do appoint an independent property manager to collect rental income over the property.

6. The defendants in response have narrated contrary information on the investment. They state that the property was realised by the effort of two distinct and separate membership, that is a partnership called Gikoe Land & Estate and Muranga Njumbi. Those partnership were formed with a view to better the welfare of its members. The properties referred to by the plaintiffs were registered in the defendant’s names to hold in trust for the members. Parties were entitled to be members of both or either of those partnerships.

7. Subsequently members agreed that a valuation of their properties be carried out and properties be assigned to the two partnerships. That it was as a result of that valuation that the property was assigned to Gikoe Land & Estate Partnership.

ANALYSIS

8. The issues that have aggrieved the plaintiffs and which has resulted in this case being filed began to occur, according to the plaintiffs, in the year 2009. The plaintiff also allege that the defendants took funds of the partnership, which is more than Ksh 10millions, the plaintiffs do not state when this occurred but the minutes of a meeting attached as exhibit JMM7 where those funds were discussed are of the year 2011.

9. The plaintiffs have, by their application sought equitable remedy of injunction. They filed their application seeking that remedy in May 2018. It is trite that equity aids the vigilant and not the indolent. A party who delays cannot obtain equitable relief. It is because of that that I decline to grant interlocutory injunction as sought by the plaintiff.

10. Similarly the plaintiffs waited from 2011, when they alleged the defendant took the partnership’s fund to May 2018 to seek orders to have the court appoint a property manager. The delay on that prayer also defeats the same.

11. This case, in my view, is one that needs to be determined in the shortest time possible. Parties will be ordered to undertake pre-trial proceeding to ensure the suit is ready for trial. Further it is in the interest of expeditious disposal of this matter that an order be made freezing the filing of any other interlocutory application, without the leave of the court. That will ensure parties concentrate on preparing for trial of this case.

CONCLUSION

12. Bearing the above in mind, I make the following orders:

a. The Notice of Motion application dated 2nd May 2018 is dismissed with cost being in the cause.

b. There shall be no further interlocutory applications filed herein, without the leave of the court.

c. This case shall be fast tracked for hearing by this court and to that end parties will be given a date at the reading of this Ruling to undertake pre-trial conference with a view to prepare for trial.

d. Orders accordingly.

DATED, SIGNED and DELIVERED at NAIROBI this17thday of October,2019.

MARY KASANGO

JUDGE

Judgment ReadandDeliveredinOpen Courtin the presence of:

Sophie....................................COURT ASSISTANT

..........................................FOR THE PLAINTIFFS

.......................................FOR THE DEFENDANTS