[2016] KEELC 1217 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND COURT

ELC. NO. 188 OF 2015

JULIUS MAILU KOMU..……………….…...............................PLAINTIFF

VERSUS

THE ATTORNEY GENERAL………………...……......…1ST DEFENDANT

THE COUNTY LAND REGISTRAR, MACHAKOS…….2ND DEFENDANT

RAHAB MUTHONI NDERITU……………..............……3RD DEFENDANT

RULING

Coming up before me for determination is the Notice of Motion dated 28th July 2015 in which the Plaintiff/Applicant seeks for the following orders:

Spent.

That an inhibiting order do issue inhibiting the 2nd Defendant, his/her agents, servants and/or employees or anybody working under him/her from registering any dealings over all that parcel of land known as Machakos/Kiandani/3011 (hereinafter referred to as the “suit property”) pending the hearing and determination of this Application and/or until further orders of this honorable court.

That an inhibiting order do issue inhibiting the 2nd Defendant, his/her agents, servants and/or employees or anybody working under him/her from registering any dealings over the suit property pending the hearing and determination of this suit and/or until further orders of this honorable court.

The 3rd Defendant, her agents, servants and/or employees be restrained by an interlocutory injunction from alienating , wasting, damaging, selling, mortgaging, disposing, transferring or in any manner dealing with the suit property until the hearing and determination of this Application and/or until further orders of this honorable court.

The 3rd Defendant, her agents, servants and/or employees be restrained by an interlocutory injunction from alienating , wasting, damaging, selling, mortgaging , disposing , transferring or in any manner dealing with the suit property until the hearing and determination of this suit and/or until further orders of this honorable court.

That an eviction order do issue against the 3rd Defendant, her agents, servants and/or employees from the suit property pending the hearing and determination of this suit and/or until further orders of this honorable court.

That costs of this Application be provided for.

The Application is premised on the grounds appearing on its face together with the Supporting Affidavit of the Plaintiff, Julius Mailu Komu, sworn on 28th July 2015 in which he averred that he is the bona fide registered proprietor of the suit property. He annexed a copy of his title deed in proof of that assertion. He further averred that by a sale agreement dated 27th November 2013 between him and the 3rd Defendant (a copy of which he annexed), he agreed to sell the suit property to the 3rd Defendant at a price of Kshs. 3,100,000/-. He further stated that it was a term in that sale agreement that he would hand over the original title document over the suit property to the 3rd Defendant to enable her to secure a loan to pay off the purchase price. He further averred that it was also a term of that sale agreement that he would only transfer the suit property after the 3rd Defendant has paid the purchase price. He confirmed having released the original title deed over the suit property to the 3rd Defendant to enable her to secure the loan. He further stated that he also allowed the 3rd Defendant to take possession of the suit property immediately upon executing the sale agreement. He stated further that contrary to the sale agreement, the 3rd Defendant did not and has not paid the agreed purchase price for the suit property as a result of which he instructed his lawyers Messrs. P.N. Musila & Co. Advocates to follow up the issue on his behalf. He stated that his said lawyers wrote to the 3rd Defendant their letter dated 18th December 2014 demanding the payment of the purchase price which letter was responded by the 3rd Defendant through her lawyers Messrs. Kamolo & Associates Advocates who advised him to wait for the payment. He averred that to date, the 3rd Defendant has never paid the purchase price or any part thereof. He averred further that in January 2015, he conducted an official search of the suit property to confirm its status and was surprised when the search indicated that the 3rd Defendant had since been fraudulently registered as the proprietor of the suit property and a title deed issued in her name on or about 4th June 2014. He confirmed having reported this state of affairs to the CID Machakos who registered a restriction order pending investigation. He further confirmed having written to the County Land Registrar, Machakos intimating to him/her that he is the bona fide proprietor of the suit property and informing him/her that the transfer to the 3rd Defendant was effected fraudulently and therefore illegal, null and void. He further stated that he asked for copies of the transfer and consent to transfer lodged by the 3rd Defendant which culminated in her being registered as the proprietor of the suit property to which the County Land Registrar did not respond. He stated that unless the 3rd Defendant is restrained or prohibited by this court from alienating the suit property, he stands in danger of losing his proprietary interest in the suit property.

The Application is not contested. Despite being served, the Defendants/Respondents did not file any response. The Plaintiff/Applicant filed his written submissions.

The Plaintiff/Applicant prays for this court to issue both an order of inhibition as well as a temporary injunction to prevent the 3rd Defendant from dealing with the suit property in a manner detrimental to his interests therein. Both orders would serve the same purpose of preserving the suit property pending the hearing and determination of this suit.

Section 68(1) of the Land Registration Act No. 3 of 2012 provides as follows:

“The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.”

From where I stand, I have to say that the Plaintiff/Applicant has made out a formidable case to answer on the part of the 3rd Defendant. He has clearly shown and demonstrated how the 3rd Defendant became the registered proprietor of the suit property (which position has been seen in the official search on the suit property) without payment of the purchase price. The Defendants were duly served with this Application and given ample opportunity to respond thereto. They have not. I am satisfied that the Plaintiff/Applicant’s interest in the suit property is in jeopardy for as long as the 3rd Defendant remains the registered proprietor thereof. Accordingly, I hereby issue an order of inhibition to be registered against the title of the suit property to remain on the register until this suit is heard and determined.

In light of this, it is not useful to issue a temporary injunction. I decline to issue an eviction order pursuant to an interlocutory application such as this one.

It is so ordered.

DELIVERED AND SIGNED AT NAIROBI THIS 12TH DAY OF FEBRUARY 2016.

MARY M. GITUMBI

JUDGE