[2019] KEHC 9996 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CIVIL CASE NO. 33 OF 2018

FORMERLY KAJIADO ELC NO. 945 OF 2017

IN THE MATTER OF THE LAND REGISTRATION ACT NO.3 OF 2012

AND

IN THE MATTER OF AN APPLICATION BY

JULIA JEBET TAGI..................................................................APPLICANT

-VERSUS-

THE LAND REGISTRATION KAJIADO....................1ST RESPONDENT

THE CO-OPERATION BANK OF

KENYA LIMITED........................................................2ND RESPONDENTS

ELVIS MAINA MINJU..................................................3RD RESPONDENT

JUDGMENT

Coming up before me for determination is the amended Originating Summons dated 15th June 2016 in which the Applicant seeks for orders including: -

1. THATthe land registrar Kajiado be and is hereby ordered to remove the restriction placed by one Alvis Maina Minju on 3/10/13 against the title of the property known as L.R No. KAJIADO/KITENGELA/3428.

2. THATthis Honourable Court do issue an order restraining the Cooperative Bank of Kenya limited from exercising any of the remedies available to it as an unpaid chargee pending the hearing and determination of this application and further orders of the court.

3. THATthis Honourable court do order the 2nd Respondent not to charge further interest on the loan balance herein pending the hearing and determination of the this Application and/or further orders of the court.

4. THAT costs be in the cause.

The application is supported by an Affidavit sworn by JULIANA CHEBET TAGI the applicant herein. It is also premised on the following grounds: - that the applicant is the proprietor of the property known as LR.NO. KAJIADO/KITENGELA/3428, as a purchaser for value from one Geoffrey Kinyanjui Mungai; that the restriction was lodged in respect of the aforesaid property, on 3rd October 2013, due to an alleged fraud; that since 2013, the status of the police case is unknown and no arrests have been made; that the property is charged to Corporative Bank of Kenya Limited to service a loan of Kshs. 3, 600,000/= borrowed by the applicant in the year 2012 in as the purchase money; that it is clear three years down the line that the restriction was baseless and ought to be lifted by this court in the interest of justice; that the applicant has been unable to pay the full loan amount due to financial difficulties, and also lost time following the fraud case with the police; that the applicant who has been retrenched by the bank, is desirous of selling the suit property in order to repay the loan amount and avert adverse action by the bank and the restriction has infringed on the applicant’s right as an innocent purchaser for value without notice of any fraud and needs to be removed.

APPLICANT’S CASE

The Applicant’s case as depicted in her supporting affidavit is such that she purchased the suit property in 2012 from Geoffrey Kinyanjui Mungai. Valuation and search was conducted on the suit property as were as the title to the said property was availed to her. (Copies of the same was annexed as JJT2 ‘search and valuation´). She applied and secured a loan of Kshs. 3, 600, 000/= from Corporative Bank of Kenya Limited and Kshs.3, 353, 000/= was transferred to the NBK account of John Mburu and Co. Advocates, who were acting for the vendor and the balance was credit to her account to settle valuation and legal fees. (Copies of correspondence and completion documents marked as JJT4). The Applicant repaid part of the loan but she failed to repay full amount due to financial difficulties. She opted to sell part of the suit property so that she could settle the rest of the amount she owes the Respondent Bank.

Upon conducting a search at Kajiado Land Office for purposes of securing a buyer for the suit property, she was informed of the restriction lodged against it by Mr. Alvis Maina Minju on 3/10/2013 which precluded against her from proceeding with the intended sell. She was shown a green card. (a copy of the same annexed hereto marked as JJT 5). She was informed by the Registrar of Land Kajiado of the alleged fraudulent acquisition of the suit property and the matter was being handled by the CID, Ongata Rongai Police Station. (JJT 6 is the annexed copy of the police letter given to the Applicant by the Registrar of Lands Kajiado). She made an effort to meet the investigating officer regarding the fraud case and she was assured that she would updated as they continue with investigations on the same which has not happened since then.

The bank has threatened to report her to CRB and sue her yet she is still in serious financial difficulties and the only option is for her to be able to sell part of the land. (Attached copies of letters from the bank marked JJT8). She deponed that she is unable to service the outstanding balance of the loan which stands at Kshs. 1, 923, 845. 44/= as at 25/4/2016, because she lost her job in December 2014. She further deponed that the restriction cannot continue to be on the title indefinitely even when it is clear that she is an innocent purchaser and the police case has not progressed for at least three years and if the restriction is not removed she will suffer untold loss and damage.

She therefore urged this court to remove the restriction in the interest of justice to allow me exercise my legal rights vis a vis the property. This court was also urged to find that no interest should be charged against the Applicant by the 2nd Respondent, pending the hearing and determination of this application and/or full payment of the balance as that would be excessive and unconscionable yet her default has been occasioned by matters beyond her control.

THE 1ST RESPONDENT CASE

The 1st respondent opposed the application vide a replying affidavit filed on 13th September, 2017 and deponed by the Principal Registrar Kajiado Mr. David Nyandoro. They also filed submissions dated 26th April 2018 in support of their case. It was indicated that according to the records held by the Registrar’s office, the suit property was initially registered in the names of the 3rd respondent. The property was subsequently transferred to Geoffrey Kinyanyui Mungai though there were no documents in our possession to support that transaction. Geoffrey Kinyanjui Mungai transferred the suit property to the applicant herein. That according to the land register there are no documents in support of that transaction. It is not clear how the applicant obtained the suit property from Geoffrey Kinyanyui Mungai who is not a party in the proceedings herein.

In their submissions, the 1st Respondents submitted that that issues of ownership ought to be dealt with in an ordinary suit where parties will call their witnesses and present their evidence. The 1st Respondents cited the case of Kiburi (1983) KLR 62 where it was held that the Originating Summons procedure is intended to enable simple matters to be settled by the court without the expense of bringing an action in the usual way and not to enable the court to determine matters which involve a serious question.

It was therefore submitted that the claim has now ceased to be a simple one of lifting a restriction to one that relates to ownership. On that basis it was argued that the summons herein should be dismissed and the applicant do institute an ordinary suit whereby issues of ownership of the suit can be properly determined.

THE 2ND RESPONDENT’S CASE

The 2nd Respondent opposed the application by way of Replying Affidavit sworn by Andrew Muhia Kagiri dated 16th August 2016. Contemporaneously with the said replying affidavit is the 2nd Respondent’s Preliminary Objection dated 6th August 2016 filed on 2nd August 2016 on grounds inter alia that the suit is fatally defective. The Preliminary Objections prays that the suit be struck out with costs to the 2nd Respondent.

The 2nd Respondent agreed with the 1st Respondent in the quest that the suit was unprocedural for having been instituted contrary to applicable statutory provisions hence it is fatally defective. Further that the same ought to have been instituted under Order 3 rule 1 of the Civil Procedure 2010. They cited the case of Joseph Kibowen Chemjor v William C. Kisera (2013) eKLR; Sarah Moraa & Another v Julius Moracha Matundura & Another (2014) eKLR; Mwalimu Kalume Charo & Another v Kifalu Karisa Kitsao (2016) eKLR in support of their argument. It was argued that apart from the issue of the removal of the restriction, which the 2nd Respondent does not object to, the suit raises contentious question of facts and law, namely whether the 2nd Respondent should be retrained from exercising its statutory remedies as an unpaid charge. These are questions ought to be raised in a proper suit by way of a plaint and not an Originating Notice of Motion.

It was further argued that if the suit is found to be fatal for contravention of statutory provisions, it ought to be struck out as observed in the case of Joseph Kibowen Case (supra).

Secondly the 2nd respondent submitted the same is not merited hence the Applicant is entitled to the orders sought. As regards the costs of the suit, it was their prayer that the same be awarded to the 2nd Respondent. They placed reliance on the Supreme decision of Jasbir Singh Rai & Others vs. Tarlochan Singh Rai & 4 Others (2014) eKLRwhere it was held that the award of costs would normally be guided by the principle that costs follow the event; the effect being the party who calls forth the event by instituting suit, will bear the costs if the suit fail.

THE 3RD RESPONDENT’S CASE

In response to the Applicant’s amended Originating summons the 3rd Respondent filed a replying affidavit sworn on 4th November 2016. In his submissions, the 3rd Respondent argued that while it is true that under section 78 of the Land Registration Act 2012 does not prescribe the procedure under which proceedings should be commenced, we submit that under order 37 rule 19 (1) of the Civil Procedure rules where an originating summons under the order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been so began and plaint, it may order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties to add to or to apply for particulars of, those affidavits. The 3rd Respondent therefore submitted under article 159 of the Constitution which enjoins courts to dispense to dispense justice without undue regard to technicalities. It was submitted that proper order to make in this case is to direct that these proceedings be continued as if they had been commenced by way of plaint with an order that all necessary parties being enjoined including the 3rd Respondent from whom the applicant claim to have bought the suit property from.

It was further submitted that bringing these proceedings to end on the basis of procedural technicalities will not resolve the issues between the parties herein and will not serve the ends of justice. On the issue as to whether to remove the restriction or not is so inextricably intertwined with the issues of validity of the titles to the suit property.

ANALYSIS AND DETERMINATION

I have carefully considered the application, the affidavits tendered by both parties in support and in rebuttal of issues herein as well as the judicial precedence and the law of the subject of amendments, I take the following view of the matter. The main issue for determination herein is whether or not the Applicant is entitled to the relief sought.

What is very clear in this application is that there is an issue of title to the suit property that has not been settled by a court of competent jurisdiction. The issue as to whether or not the restriction ought to be removed touches on the matters of validity of title. Both the Applicant and the 3rd respondent claim to be the registered proprietors of the suit property. In the court’s view, it is only the Environment and Land Court which has the jurisdiction to determine a dispute regarding ownership of the land. Consequently, this court lacks the jurisdiction to lift the restriction as it is a matter that goes to the sanctity of the title to the suit property. In the premises the Applicant’s prayer on this limp fails.

On the issue of interest, the applicant asked the court to order the 2nd respondent not to charge further interest on the loan balance herein pending the hearing and determination of this application and or further orders. The 2nd Responded opposed the Applicant’s prayer on the basis that the interest chargeable on the loan balance is a contractual issue between the Applicant and the 2nd Respondent giving rise to the right of the 2nd Respondent to collect the interest and to the Applicant’s obligation to pay as voluntarily contracted. Further arguments that if this court considers intervening on the issue of interest it would be rewriting the said contract between the parties.

I’m inclined to concur with the 2nd Respondent that the issue as regards interest is contractual, thus parties are bound by the terms of the loan agreement. Further, it is trite law that courts have no obligation or the power to rewrite contracts for parties. Courts may only be able to intervene in issues of interest where the amount claimed is paid in court or is excessive, unconscionable, and or the interest charged is uncontractual or illegal. In the case of NATIONAL BANK OF KENYA V PIPELASTIC SAMKOLIT (K) LTD & ANOTHER[2001] EKLRwhere it was held that a court of law cannot purport to rewrite a contract between the parties. The parties are bound by the terms of their contract unless coercion, mistake, fraud or undue influence are pleaded. It was also observed in the case of OSTERIA ICE CREAM LIMITED v JUNCTION LIMITED (TJL) [2011] eKLR,where it was held that: -

“Any attempt by a court to extend the period would amount to rewriting the contract between the parties. Only the parties themselves can rewrite their contract. The duty of the court is to interpret and enforce contracts entered into by the parties but not to rewrite them.”

The upshot is that the motion fails for lack of merit and is hereby dismissed with costs.

It is so ordered

The cost of this Originating Summons be borne by the Applicant.

Dated, signed and delivered in Open Court at Kajiado this 21st day of February 2019.

………………………………………………

R. NYAKUNDI

JUDGE

Representation

Mr. Nairi for Ms. Sawe for the Plaintiff/Applicant

Mr. Nzioka for Malonza for the 2nd Defendant