[2019] KEELC 4123 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO.871 0F 2017

JOSEPH KAGECHE KARANJA………….PLAINTIFF/APPLICANT

VERSUS

LEAH NJOKI THITU………………....DEFENDANT/RESPONDENT

RULING

The Plaintiff/Applicant herein Joseph Kageche Karanja brought this Notice of Motion dated 19th December 2017, and sought for injunctive orders to restrain the Defendant/Respondent herein Leah Njoki Thitu from trespassing on, demarcating, accessing or in any other way interfering with the Plaintiff’s/Applicant’s peaceful possession and occupation of the parcel of land known as Karai/Karai/369, pending the hearing and determination of the suit.

The Applicant supported his application on the grounds that he is the registered owner of the suit land Karai/Karai/369, but he was informed by Kabete Sub-County Lands Surveyor that he intends to visit the Applicant’s land to demarcate the same on the strength of a Court Order dated 30th January 2013. It was his contention that the said Court Order was issued against James Karanja Kageche, who is the Plaintiff’s father and who passed on, on 7th August 2015, and therefore, Plaintiff/Applicant was not a party to the said suit that gave rise to the aforesaid Court Order. Further that the suit abated as there was no substitution and the Respondent has also not issued the mandatory Notice to Show Causewhy execution should not issue. Further, that the Order sought to be executed has been overtaken by events and if implemented the same would be prejudicial to the Applicant as he would be condemned unheard. The Applicant also filed his Supporting Affidavit even dated and reiterated the contents of the grounds in support of the Affidavit.

This application is contested and Leah Njoki Thitu filed her Replying Affidaviton2nd March 2018 and averred that she sold 2 acres of land to the Applicant’s father James Karanja Kageche, which gave rise to land parcel No.Karai/Karai/369. However, the said James Karanja Kageche annexed part of her parcel of land before obtaining title deed. Therefore the Respondent filed Land Dispute Tribunal Case No.4 of 2011, at Kikuyu Law Court, wherein a Decree was issued. She further filed ELC No.903 of 2013,atMilimani Enviroment & Land Court wherein a Judgment was entered in her favour. She also contended that even though the deceased, James Karanja Kageche & Others filed JR/ELC No.28 of 2011, the same was dismissed by the court vide a Judgment delivered on 27th September 2012. It was her contention that the Applicant was aware of the facts and the circumstances surrounding LR.No.Karai/Karai/369. Further that she has been advised by her advocate on record that a suit cannot abate at the execution stage and that she has made the necessary application in Milimani ELC No.903 of 2013.

This application was canvassed by way of written submissions which this Court has carefully read and considered. The Court has also considered the cited authorities and the relevant provisions of law.

There is no doubt that the Defendant/Respondent herein Leah Njoki Thitu,had sold 2 acres of land to one James Karanja Kageche, who is the father to the Plaintiff/Applicant herein way back in the year 1973, as is evident from the annextures attached to the pleadings. There is also no doubt that the Defendant/Respondent also filed Land Case No.4 of 2011 at Senior Principle Magistrates Court, Kikuyu. A Decree was issued to the effect that there be re-surveying of LR.No.Karai/Karai/369. The said Order was against James Karanja Kageche. Further, there is no doubt that the said Defendant also filed ELCNo.903 of 2013, wherein a Judgment was issued in her favour on 4th November 2016. However, the said Judgment was against James Karanja Kageche who is now deceased.

It is not in doubt that James Karanja Kageche died on 7th August 2015,before the Defendant could execute the Decree issued in her favour in Land Case No.4 of 2011 (SPM – Kikuyu). Further, it is apparent that during the hearing of the Formal Proof in ELC No.903 of 2013, in October 2015, the said James Karanja Kageche was deceased and there was no substitution.

Further, it is not in doubt that the Plaintiff herein acquired a title deed for Karai/Karai/369 on 17th August 2015. The Plaintiff herein was not a party to the proceedings in Land Case No.4 of 2011.

It is also not in doubt that on 6th December 2017, the Kabete Sub-County Land Surveyor indicated that he would visit the suit land on 20th December 2017and demarcate the land in accordance to the Court Order dated 30th January 2013.

The Plaintiff/Applicant alleged that the said Order cannot be executed against him as he was not a party to Land Case No.4 of 2011. However, the Defendant alleged that the Plaintiff was well aware of the circumstances surrounding this case and only obtained the title deed in his favour to defeat the Defendant’s cause.

The issues raised by the parties herein can only be resolved after calling of evidence and testing the same at the full trial. The issue of whether the Land Dispute Tribunal Case No.4 of 2011 has abated or not or whether or not a suit can abate at the execution stage needs to be interrogated further. All that is apparent is that the Plaintiff/Applicant is the holder of the title Karai/Karai/369. The Defendant/Respondent has not been in occupation of any portion of the said parcel of land.

Though there is a Judgment in favour of the Defendant/Respondent in ELC No.903 of 2013, delivered on 4th November 2016, the demarcation in issue is in pursuant of the Court Order issued on 30th January 2013 emanating from Land Dispute Tribunal Case No.4 of2011, Kikuyu Law Courts, wherein the Plaintiff is alleging that the same has abated.

The Court finds that the issues in dispute needs to be interrogated thoroughly in a full trial.

For the above reasons, the Court finds that the Plaintiff/Applicant has not established that he has a prima-facie case with probability of success.

However, if the demarcation is carried out as per the Court Order, then Karai/Karai/369, wherein the Plaintiff/Applicant is a title holder will be affected without having resolved the issue of whether the said suit wherein Ordersdated 30th January 2013 had abated or not abated.

Further, the Court finds that it is in doubt and in such circumstances, it will resolve the issue herein on the balance of convenience.

Therefore, upon consideration of the available evidence and exhibits, though there are Judgments against James Karanja Kageche (deceased), the Court finds that the Plaintiff/Applicant herein is now the title holder and the balance of convenience tilts in his favour. The Court finds that the best option for now is to maintain the status quo prevailing until the suit is heard and determined. See the case of Virginia Edith Wambui…Vs....Joash Ochieng Ougo, Civil Appeal No.3 of 1987 (1987) eKLR, where the Court of Appeal held that:-

“The general principle which has been applied by this court is that where there are serious conflicts of facts, the trial courtshould maintain the status quo until the dispute has beendecided on a trial”.

Having now considered the Notice of Motion application dated 19th December 2017, the Court finds no reason to issue the Orders sought in prayer No.3 of the said Notice of Motion but directs that status quo be maintained and the status quo is that the Plaintiff/Applicant is in possession and there should be no demarcation in pursuit of Court Order dated 30th January 2013, until the suit is heard and determined or until further Orders of the Court.

Further, the Court has noted that there is another suit ELC No.903 of 2013 which was determined on 4th November 2016 and which was decided in favour of the Defendant/Respondent herein.

For purposes of avoiding parallel proceedings, the Court advices the Plaintiff/Applicant herein to seek to be enjoined in the above stated suit and ventilate his issues therein. Consequently, the Court will stay this suit under Section 6 of the Civil Procedure Act awaiting the outcome of the further proceedings in ELC No.903 of 2013.

It is so ordered.

Dated, Signed and Delivered at Thika this 22nd day ofMarch 2019.

L. GACHERU

JUDGE

22/3/2019

In the presence of

Mr. Kithiri holding brief for Mrs. Magu for the Plaintiff/Applicant

Mr. Njuguna Karanja for Defendant/Respondent

Lucy - Court Assistant

L. GACHERU

JUDGE

22/3/2019