[2017] KEELC 3776 (KLR)

REPUBLIC OF KENYA

IN THE LAND AND ENVIRONMENT COURT OF KENYA AT KAKAMEGA

ELC NO. 611 OF 2014

JM :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

JMA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 1ST DEFENDANT

WYCLIFFE WASHIKA :::::::::::::::::::::::::::::::::::::::::: 2ND DEFENDANT

BENJAMIN HAGGAI :::::::::::::::::::::::::::::::::::::::::::: 3RD DEFENDANT

ROSE SHIMULI KWEYU :::::::::::::::::::::::::::::::::::: 4 TH DEFENDANT

ELIZABETH SICHOLE :::::::::::::::::::::::::::::::::::::::: 5TH DEFENDANT

JUDGMENT

PW1 stated that 1st defendant is the registered proprietor of title Number [Particulars Withheld] /3019 MEASURING 10. 32 Hectares. The plaintiff avers that she was legally married to the defendant and further states that L.R. NO. [Particulars Withheld] 3019 is the only asset both the plaintiff and the defendant relied on and that the same was a family land. The plaintiff avers that the defendant carried sub-division on the said parcel of land and that the defendant has secretly disposed the whole parcel of land to certain purchasers without the plaintiff’s knowledge or consent.

The plaintiff avers that she took the matter to the chief and area chief of which it appears that they colluded with the 1st defendant to sell the said parcel of land. The plaintiff avers that at one given time, she placed a caution on the said parcel of land but the said caution was removed by the 2nd defendant who claimed that the plaintiff had died and that the burial permit got burnt in the house. The plaintiff avers that she has even been served with eviction letter to be evicted from L.R. NO. [Particulars Withheld] /3019 and the plaintiff has no other place to go. The plaintiff prays for a permanent injunction restraining the defendants, their agents’ servants, employees and or anybody acting on behalf from interfering, encroaching, alienating, cultivating, contracting, construing and or dealing in any manner on L.R. NO. [Particulars Withheld] 3019 pending hearing and determination of this matter.

DW1 the 1st defendant states that the plaintiff is his wife and that he had two more wives and that he sold land to the defendants and that the plaintiff was aware. His evidence was that it is the plaintiff who introduced him to the 4th defendant Rose Shimuli Kweyu as she could not pay a loan from Kenya Women Finance Trust upon default. It is the 1st defendants evidence that after the sale agreements that the plaintiff was all aware about, he had to subdivide his property originally East [Particulars Withheld] /3019 to sub-divided into 3195-3202 as it was ancestral property.

It is the defendants’ submission that since the plaintiff was aware of the sale agreement, the sub-divisions are deemed to be in accordance with the law. It is the 1st defendant evidence that the plaintiff is in occupation of part of the land that sub-division has not been done. The purchaser’s interests have to be protected as they are purchasers for value and plaintiff has no claim whatsoever.

DW2 the 2nd defendant’s evidence was that he bought land from the 1st defendant who approached him that he could be arrested because of the loan taken by the plaintiff. The plaintiff was aware of the sale agreements and has since sold the land to DW3. DW3, the 3rd defendant’s evidence is that he bought land from the 2nd defendant and has since developed the said land and has a copy of the title deed. DW4, the 4th defendant stated that she bought land from the plaintiff and 1st defendant. The plaintiff was one of the signatories in the sale agreement. DW4 has since sold the land to one Samuel Wagura. DW5, the 5th defendant bought land from the 1st defendant and the plaintiff was aware.

The plaintiff submitted that she is the wife of the 1st defendant which fact was not disputed by the 1st, 2nd, 3rd, 4th and 5th defendants. Under section 28 (a) of the Land Registration Act No. 3 of 2012 the plaintiff’s rights to land parcel number EAST [Particulars Withheld] /3019 is an overriding interest on the parcel of land. Since she is the wife of the 1st defendant any transaction undertaken in respect of the parcel of land without her consent is null and void abinitio. Under section 93 (3) (a) (b) and (4) of the Land Registration Act No. 3 of 2012 any transaction undertaken without the consent of a spouse shall be void at the option of the spouse who didn’t consent to the transaction.

That in the above circumstances the transaction undertaken by the defendants jointly and severally in respect of land parcel number EAST [Particulars Withheld] /3019 without the consent of the plaintiff are void. The plaintiff is entitled to restrain the defendants from dealing with the suit land in any way since her consent was not obtained. She prays for judgment for the plaintiff and further order that the sub-divisions of land parcel number EAST [Particulars Withheld] /3019 into land parcels number 3195 to 3202 be cancelled.

It is the Defendants’ submission that from the facts there is no need of the consent as the plaintiff took part in the said land transactions. Spousal consent is a requirement under section 28 (a) land Register Act 2012. It is their submission that spousal consent was not a requirement while the registered land Act was still operative. All the sale transactions occurred before the enactment of the Land Act 2012, therefore the requirement of spousal consent is inoperative. On the issue of injunction the defendants relied on the following authorities;

1. Giella v Cassman Brown & Company Ltd 1973 EA 353

2. Rose Chepkurui Mibei v Jared Mokua Nyariki & 2 Others ELC No. 24 of 2015

3. Joyce Chepkemoi Ng’eno & 2 Others (2016) eKLR

This Court has carefully considered the instant case and the Court record in totality. The Court has also considered the relevant provisions of law, the written submissions, and the cited authorities. It is not disputed that the plaintiff is a wife to the 1st defendant who was the registered proprietor of Land Parcels Number East [Particulars Withheld] /3019 measuring 10. 32 Hectares. It is also not disputed that 1st defendant caused the subdivision of the said parcel to the 2nd, 3rd, 4th and 5th defendants. The issues now to be determined are as follows;

1. Whether or not the plaintiff was aware of said sale agreement?

2. Whether the sale of land to the 2nd, 3rd, 4th and 5th defendants is null and void for lack of consent?

3. Whether or not the sub-division was done in accordance with the law?

On whether or not the plaintiff was aware of said sale agreements and whether or not she gave approval, be it explicitly or by implication, in the alternative whether or not her consent was required at the material time, the plaintiff submitted that she is the wife of the 1st defendant which fact was not disputed by the 1st, 2nd, 3rd, 4th and 5th defendants. Under section 28 (a) of the Land Registration Act No. 3 of 2012 the plaintiff’s rights to land parcel number EAST [Particulars Withheld] 3019 is an overriding interest on the parcel of land. Since she is the wife of the 1st defendant. That any transaction undertaken in respect of the parcel of land without her consent is null and void abinitio. Under section 93 (3) (a) (b) and (4) of the Land Registration Act No. 3 of 2012 any transaction undertaken without the consent of a spouse shall be void at the option of the spouse who didn’t consent to the transaction.

On perusal of the sale agreements I find that the original sale took place before the enactment of the Land Act, 2012 and Land Registration Act, 2012, that is. In 2004, 2009 and 2010 and therefore spousal consent was not a requirement. The proprietary interest lay with the 1st defendant and he was able to dispose of his interest. I referred to the cases of Elizabeth Nthenya Wambua vs Philip Wambua Masila & 3 Others (2013) eKLRand Barclays Bank of Kenya Ltd vs The Hon. Attorney General & Another (2015) eKLR.

Be that as it may and without prejudice to the forgoingthe plaintiff stated in evidence that she was not aware of the sale of the land and that the same was done in secret. It is her contention that she only became aware of the sale when in 2008 she found the 2nd defendant there. The 1st defendant on the other hand, states that the plaintiff was aware of the sale of the land. I believe the 1st Defendant, DW1 came through as a forthright and honest witness. He explained in detail how he sold the land to bail the plaintiff out of financial difficulties and to educate his children when he sold the land to DW2 in 2009. DW4 was introduced to him by the plaintiff who signed the sale agreement way back in 2004 but is now saying that her signature was forged. I find that it has been demonstrated on a balance of probabilities that the plaintiff was expressly and by implication aware of the agreements. It is the 1st defendant evidence that the plaintiff is in occupation of part of the land that sub-division has not been done. DW5 bailed them out and bought the piece of land when their cows had been taken for auction after the plaintiff defaulted in paying her debt in 2010. The plaintiff is therefore estopped by her actions from claiming she is not aware of the transanctions. See Joyce Chepkemoi Ng’eno v Samuel Kipkorir Ng’eno & 2 others [2016] eKLR.Hence I find that the sale of land to DW2, DW4 and DW5 was in order.

This matter being one that seeks a permanent injunction, has to be considered within the principles set out in the case of GIELLA VS CASSMAN BROWN & CO. LTD 1973 E.A 358 and which are:-

1. The applicant must show a prima facie case with a probability of success at the trial

2. The applicant must show that unless the order is granted, he will suffer loss which cannot be adequately compensated in damages and,

3. If in doubt, the Court will decide the application on a balance of convenience.

It must also be added that an injunction is an equitable relief and the Court may decline to grant it if it can be shown that the applicant’s conduct pertinent to the subject matter of the suit does not meet the approval of a Court of equity.

The plaintiff has not established a prima facie case and has not shown the court that she could suffer irreparable loss. It has come out in evidence that the plaintiff is in occupation of part of the suit land with her children which subdivision is yet be obtained. For the above reasons, the court finds that the plaintiff has failed to prove her case and the same is dismissed. Each party is to bear its costs.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 12TH DAY OF JULY 2017.

N. A. MATHEKA

JUDGE