[2022] KEELC 13282 (KLR)

Kardale & 13 others v District Land Adjudication & Settlement Officer Transmara East & West & 55 others; District Land Registrar Transmara West & 5 others (Proposed Defendant) (Environment & Land Case 13 of 2021) [2022] KEELC 13282 (KLR) (25 July 2022) (Ruling)

Neutral citation: [2022] KEELC 13282 (KLR)

Republic of Kenya

In the Environment and Land Court at Kilgoris

Environment & Land Case 13 of 2021

EM Washe, J

July 25, 2022

Between

Oloisiriri Kardale & 13 others

Plaintiff

and

District Land Adjudication & Settlement Officer Transmara East & West & 55 others

Defendant

and

District Land Registrar Transmara West

Proposed Defendant

Siamo Ole Saiyore

Proposed Defendant

Lelimo Michael Kaipoi

Proposed Defendant

Konchory Telew Samuel

Proposed Defendant

Andrew Laton Lekokei

Proposed Defendant

Beatrice Kwamboka Kitrap

Proposed Defendant

Ruling

1. The plaintiff/applicant moved the court by way of an amended notice of motion dated December 9, 2021 (hereinafter referred to as “the present application”) seeking for the following orders; -I.Spent.II.That the honourable court be pleased to add/join the proposed defendants, district land registrar Transmara West/East, Siamo Ole Saiyore, Lelimo Michael Kaipoi, Konchory Telew Samuel, Andrew Laton Lekokei and Beatrice Kwamboka Kitrap to the proceedings herein as necessary parties purposely to participate in the hearing of the suit herein as defendants.III.That upon joining the suit, the parties herein be granted leave to further amend their pleadings to reflect the joinders.IV.That pending the hearing and determination of this applicationinter-partes, the honourable court be pleased to issue an order of temporary injunction restraining the 57th proposed defendant by himself, agents and/or servants from issuing any further proprietorship documents in form of title deeds, leases or charges and/or dealing in any other way adverse to the interests of the plaintiffs herein in relation to the disputed parcels of land in the plaint dated March 19, 2020. V.That pending the hearing and determination of the main suit, this honourable court be pleased to issue an order of temporary injunction restraining the 57th proposed respondent by himself, agents and/or servants from issuing any further proprietorship documents in form of title deeds , leases or charges and/or dealing in any other way adverse to the interests of the plaintiffs herein in relation to the disputed parcels of land in the plaint dated 19th March 2020 otherwise known as Transmara/narok no 857,765,927,729,656,657,279,1006,554,471,470,861,910,1012,517,937,518,528,608 and 544. VI.That this honourable court be pleased to compel the 57th proposed defendant to furnish the plaintiffs herein with all the current registration records for all those disputed parcels of land listed in the further amended plaint dated 19th of March 2020. VII.That the costs of this applicationbe provided for.

2. In seeking for the above orders, the applicants have invoked the provisions of article 159 of the Constitutionof Kenya, order 1 rule 10 (2), order 40 rules 1 & 2, order 51 rule 1 of theCivil Procedure Rules, section 1A, 3A of the Civil Procedure Act and all other enabling provisions of the law.

3. The grounds relied upon by the applicants can be summarised as follows; -A.The applicants believe are the rightful owners of a number of parcels within Nkararo adjudication section which parcels are subject of the suit herein.B.The suit herein seeks interalia a declaration that the applicants are the rightful owners of the respective parcels within Nkararo adjudication section and an order for cancellation of the adjudication register in respect of Nkararo adjudication section.C.The proposed 57th defendant namely district land registrar, Transmara west and east interfered with the legal documents and proprietary rights of the following titles namely Transmara/nkararo/521, Transmara/nkararo/1296, Transmara/nkararo/1176, Transmara/nkararo/290, Transmara/nkararo/280, Transmara/nkararo/500, Transmara/nkararo/492,transmara/nkararo/494 And Transmara/nkararo/294 by creating new titles namely Transmara/narok no 857,765,927,656,657,279,1006,554,471,470,861,910, 1012,517,937,518,528,608 and 544 despite the fact that these parcels were subject to the orders issued on the July 18, 2019 directing the Status Quo be maintained pending the hearing and determination of this suit.D.The issuance of new titles by the proposed 57th defendant emanating from titles which are subject of this suit is in contravention of the court order issued on the July 18, 2019 and duly served on the proposed 57th respondent.E.Similarly, the registration of new entries and/or issuance of the title deeds for the properties that are subject of this suit shall keep shifting the goal posts of the applicants as the parties to be sued shall keep changing thereby delaying the final determination and/or conclusion of this suit.F.The act of joining the proposed defendants to this suit and issuance of the temporary injunctions is necessary and fundamental for the determination of the issues in the main suit.G.Lastly, the applicants seek for orders that the proposed 57th defendant be directed to produce copies of the records of registration or the suit properties listed in the plaint dated March 19, 2020.

4. The present applicationis supported by an affidavit of one Joseph KisembeKipInToi sworn on the December 9, 2021.

5. The supporting affidavit expounds on the grounds that have been relied upon in the main body of the applicationand further attached various annextures namely the (i) the status order issued on the July 18, 2019, (ii) an affidavit of service sworn by one Martha Njeri Mwangi on the July 26, 2021, (iii) certified copy of the green Card of the property known as Transmara/nkararo/500,( iv) a report from the registrar of land ( not annexed) (v) copies of official searches of the parcels issued to the proposed defendants(vi) copy of letter from the applicant’s counsel an official search of the property known as Transmara/nkararo/1269,(vi) bundle of green cards produced in court by the sub-county land registrar (vii) a letter dated October 9, 2021 from the firm of Gordon Ogolla, Kipkoech & Company, Advocates to the district land registrar , Transmara West.

6. The applicants then filed their submissions on the January 24, 2022.

7. The proposed defendants affected by this present applicationhave filed various documents in opposition.

8. The proposed 57th defendant through the honourable attorney general’s office filed grounds of opposition on the December 15, 2021 and submissions on the February 16, 2022.

9. The proposed 58th defendant opposed the present applicationthrough a replying affidavit filed on the November 30, 2021 but did not file any submissions thereafter.

10. The proposed 59th defendant also filed a replying affidavit on the December 15, 2021 but on the February 2, 2022 indicated in court that he was not opposing the prayer for joinder.

11. The proposed 60th and 61st defendant filed grounds of opposition on the December 7, 2021 as well as their submissions on the February 11, 2022.

12. The last proposed 62nd defendant has not participated in these proceedings despite proper service by the applicants.

13. In a summary, the present applicationraises four issues for determination which can be identified as follows; -A.Whether or not the applicant has established sufficient ground to warrant the joinder of the proposed defendants?B.Whether or not the applicant has satisfied the legal requirements for granting a prohibitory injunction against the proposed 57th defendant as prayed.C.Whether or not the applicant has placed before the court sufficient reasons to direct the proposed 57th defendant to produce and/or make available the ownership records regarding the disputed properties in this suit.D.Who bears the costs of the present application?

14. Based on the above issues, the court shall now proceed to evaluate and make the appropriate determinations as required by law.

A. Whether or not the applicant has established sufficient ground to warrant joinder of the proposed defendants. 15. The applicant in this present applicationhas invoked the provisions of order 1 rule 10(2) which provides as follows; -“The court may at any stage of the proceedings , either upon or without the applicationof either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant , be struck out, and that the name of any person who ought to be joined , whether as plaintiff or defendant , or whose presence before the court may be necessary in order to enable the court effectively and completely to adjudicate upon and settle all questions involved in this suit, be added.”

16. In the day to day determination of applications under order 1 rule 10 (2), a number of principles have been established to guide the courts.

17. A decision to assist the court in determining this issue of joinder is the reported case of Hamisi Yawa V36,000othersv Tsangwa Ngala Chome & 19others(2018) eKLR which held as follows; -“An applicationfor joinder is to bring on board a necessary party for purposes of determining the real issue(s) in dispute.Also, a joinder of a party is not an automatic right but one which is granted upon the exercise of the discretion of the court concerned.Nonetheless, the court exercises such discretion under defined parameters, that is, it must be satisfied that; -a)The intended party has a personal interest or stake in the matter in question, and that interest is clearly identified and proximate enough and not merely periphal.b)The intended party’s presence would enable court to resolve all the matters in dispute.c)The intended party would suffer prejudice in case of non-joinder.d)The joinder of the intended party will not vex or convolute the proceedings with unnecessary new matters and grounds not contemplated by the parties or envisaged in the pleadings.”

19. The applicants seeks to join the district land registrar Transmara West & East as the 57th defendant.

20. The applicants submits that the proposed 57th defendant has through the powers vested in the office by law proceeded to create new parcels of land from the disputed properties which are the subject of this suit and registered the new parcels in the names of the proposed 58th defendant to the 62nd defendant.

21. The proposed 57th defendant actions are in contravention of the court orders issued on the July 18, 2018 which directed that all the suit properties be maintained as they were by virtue of a status quoorder.

22. The applicants plead in ground no. 3 contained in the present applicationthat the proposed 57th defendant registered and issued various title deeds in January 2021 namely Transmara/nkararo/521,1269,1176,290,280,500,492,494 and 294 in the names of the proposed 58th to 62nd defendants.

23. Looking at the grounds of the present application and the supporting affidavit therein, the applicants submit that the proposed 57th defendant is the maker and custodian of the land records within Transmara West and East including the area known as Nkararo adjudication section.

24. By virtue of the duties bestowed on this office by law, it is therefore necessary that the proposed 57th defendant be joined for purposes adjudicating the issues raised by the applicants in the main suit.

25. A perusal of the grounds of opposition dated December 14, 2021 filed by the honourable attorney general on behalf of the proposed 57th defendant and the submissions filed on the February 16, 2022, this court does not find any paragraph that challenges the applicants prayer for joinder.

26. In other words, the particular prayer of joinder of the proposed 57th defendant has not been opposed by the honourable attorney general.

27. Nevertheless, this court still has a duty to ensure that the applicants satisfy the parameters provided in the case of Hamisi Yawa v 36,000othersv Tsangwa Ngala Chome& 19 others(2018) eKLR.

28. From a perusal of the further further amended plaint dated March 19, 2020, the applicants herein claim beneficial ownership of various plots of land within Nkararo Adjudication section.

29. The plots claimed by the applicants in the further further amended plaint dated March 19, 2020 include plots 448,291,279,1006,857,765,554,471,470,482,933,927,861,910,729,656,657,500,1012,492,280,290,294,517,521,518,528,525,937,608 and 544.

30. The exercise of adjudication as provided in the Land Adjudication Act cap 284 (now repealed) is vested in the offices of the 56th defendant and the proposed 57th defendant.

31. It is therefore clear to this court that the presence and participation of the proposed 57th defendant is cardinal in understanding the process of ascertaining the ownership and registration thereof of the parcels claimed by the applicants in the Further Further amended plaint dated March 19, 2020.

32. Similarly, upon the determination of the main suit herein, the prayers contained in the further further amended plaint dated March 19, 2020 will be substantially directed to the 56th defendant and the proposed 57th defendants for implementation.

33. Consequently therefore, this court is of the view that the joinder of the proposed 57th defendant is crucial in the determination of this suit.

34. As appertains the proposed 58th defendant to the 62nd defendant, the applicants rely on the green cards and/or title documents issued in the year 2021.

35. According to the certified green cards filed in court on the December 3, 2021, the records from the offices of the proposed 57th defendant indicate as follows; -Transmara/nkararo/1176- Konchory Telew Samuel & Andrew Laton Lekokei.Transmara/nkararo/290-parngori Parsayo Keser & Kinyamal Ole Parngori.Transmara/nkararo/280-henry Mochache Anyieni & Rebecca Motabori AnyieniTransmara/nkararo/1269-lelimo Michael KaipoiTransmara/nkararo/494- Kolatai MeikaniTransmara/nkararo/492- Lemasheri Ole NgugireTransmara/nkararo/500- Peter Sirmei Kitirrap & Beatrice Kwamboka KitrapTrasmara/nkararo/521-siamo Ole Saiyore

36. The court having satisfied itself that indeed the above-mentioned persons are holders of various title deeds issued in the year 2021 which is during the pendency of this suit, the law requires that such persons should be given a chance to defend their titles before any orders are made by this court.

37. The process and/or methodology used by the proposed 58th to 62nd defendants in procuring their titles will be tested at the trial and if indeed the legal procedures were followed, then there would be no prejudice visited on the proposed defendants.

38. In the circumstances, the court is satisfied that the applicants have moved this court appropriately and satisfied the relevant parameters required to grant the prayer to join the proposed 58th, 59th, 60th, 61st and 62nd defendants as defendants in this suit.

. B) Whether or not the applicant has satisfied the legal requirements for granting temporary injuction against the proposed 57th defendant as prayed. 39. The applicants prayer No 5 reads as follows; -“That pending the hearing and determination of the main suit, this honourable court be pleased to issue an order of temporary injunction restraining the proposed 57th defendant by himself, agents and/or servants from issuing any further proprietorship documents in form of title deeds, leases or charges and/or dealing in any other way adverse to the interests of the plaintiffs herein in relation to the disputed parcels of land in the plaint dated March 19, 2020 otherwise known as Transmara/narok/no 857,765,927,729,656,657,279,1006,554,471,470,861,910,1012,517,937,518,528,608 and 544. ”

40. The prayer hereinabove has been premised on the provisions of order 40 rule 1 and order 51 rule 1 of theCivil Procedure Rules.

41. The origin of the applicants prayer no 5 is the order issued on the 18th of July 2019 which read as follows; -“That theStatus Quo be maintained pending the hearing and determination of this suit.”

42. The applicants submit that the court order dated July 18, 2019 was served on the 57th defendant but despite knowledge of the same, various titles were issued in the year 2021 against the titles which the court has ordered that Status Quo be maintained.

43. The applicants position is that the 57th defendants actions of alienating properties which are part of this suit and the court had previously ordered a status Quo compromises the subject matter of this suit and defects the proper determination of the issues herein.

44. The properties which the applicants seek to preserve and are part of the disputed parcels are namely Transmara/narok/857,765,927,729,656,657,279,1006,554,471,470,861,910,1012,517,937,715,528,608 and 544.

45. The applicants have alleged that the titles issued on the January 29, 2021 which were allocated in the name of the 58th defendant to the 62nd defendant were namely Transmara/nkararo/521,1269,1176,290,280,500,492,494 and 294.

46. The 58th defendant filed a replying affidavit on the November 30, 2021 which it is confirmed that he is the registered owner of the property known as Transmara/nkararo/521.

47. The 58th defendant states that he purchased the same from one Daniel Ledama Mpirikany vide an agreement for sale dated March 14, 2019 (annexed as annexture sos 1 in the replying affidavit.)

48. At the time of purchasing the property known as Transmara/nkararo/521 in the year 2019, the property already had a green card and the number Transmara/nkararo/521 reflected in the ministry of land.

49. The applicants in paragraph 16 of the supporting affidavit indicate that the parcel no Transmara/nkararo/521 is one of the properties listed in the plaint as a disputed property.

50. The 59th defendant filed a brief replying affidavit dated December 15, 2021 where he pleaded that he was not opposed to the applicants applicationsave for costs.

51. The 60th and 61st defendants on the other hand filed grounds of opposition on the December 7, 2021.

52. Their submissions were filed on the February 11, 2022 and in a nutshell seek for the dismissal of the present application.

53. The basis of the prayer for dismissal is that the Status Quo order of July 18, 2019 did not expressly prohibit the 57th defendant from alienating any property which was not among the list provided in the plaint at that time.

54. Secondly, the property owned by the 60th and 61st which is Parcel No Transmara/nkararo/1176 was not among those listed in the plaint and therefore not subject to any orders of the court issued on the July 18, 2019.

55. The 62nd defendant neither entered appearance nor filed any documents in opposition of this application.

56. The court in considering an applicationfor injunction is usually guided by the celebrated case of Giella v Cassman Brown & Co Ltd.

57. The parameters that should at all times guide the court on an applicationfor injunction include (i) the applicant must show a prima facie case with a probability of success (ii) demonstrate that unless it is granted the applicant might suffer irreparable injury (iii) in the event of doubt, the court will decide on a balance of convenience.

58. Prayer No 5 seeks an injunction only against the 57th defendant namely the District Land Registrar, Transmara West & East in person and/or agents and/or servants from issuing any further proprietorship documents in form of title deeds, leases or charges and/or dealing in any other way adverse to the interests of the plaintiffs herein in relation to the disputed parcels of land in the plaint dated March 19, 2020 otherwise known as Transmara/narok No 857,765,927,729,656,657,279,1006,554,471,470,861,910,1012,517,937,518,528,608 and 544.

59. The first limb is whether the applicants have proved a prima facie case with a probability of success against the 57th defendant?

60. Looking at the applicationherein, the applicants have not attached any draft amended further further amended plaint to provide the cause of action against the 57th defendant.

61. Consequently therefore, the court is unable to clearly appreciate the applicants cause of action against the 57th defendant or its probability of success.

62. What the court appreciates from the present applicationis that there are status orders which were issued on the July 18, 2019.

63. The applicants in this present applicationsubmit that the proposed 57th defendant disregarded this orders of July 18, 2019 and issued various titles to the proposed 58th to 62nd defendants.

64. So far, the applicants have not disclosed any remedies that they would seek against the proposed 57th defendant at the hearing of this suit.

65. Be may as it is, the applicants prayer no. 5 is specific on the titles that should be preserved by the issuance of this injunctive orders.

66. At the time of issuance of the Status Quo order on the July 18, 2019, the operating plaint was the amended plaint dated July 25, 2018.

67. The further further amended plaint is dated March 19, 2020 and filed on July 1, 2020.

68. The applicants therein under clause 5 all the way to clause 41 provide the details of the various plots which they claim to be in occupation and are rightfully entitled to them.

69. The plots being claimed by the applicants in the Further Further amended plaint dated March 19, 2020 are still under an adjudication process by the 56th defendant.

70. The applicants in this present applicationare seeking to injunct the proposed 57th defendant from dealing with specific parcels namely Transmara/narok no.857,765,927,729,656,657,279,1006,554,471,470,861,910,1012,517,937,518,528,608 and 544.

71. The proposed 58th and 62nd defendant parcels and/or titles known as Transmara/nkararo/521,1269,1176,290,280,500,492,494 and 294 are alleged to have been hived off the parcels claimed by the applicants.

72. The expectation of the court was that the applicants would have provided documentary proof to show that indeed, the properties pleaded in the further amended plaint dated July 25, 2018 and in particular Transmara/narok No 857,765,927,729,656,657,279,1006,554,471,470,861,910,1012,517,937,518,528,608 AND 544 were indeed the same plots that created the parcels known as TRANSMARA/NKARARO/521,1269,1176,290,280,500,492,494 AND 294.

73. The production of the green cards relating to parcels Transmara/narok No 857,765,927,729,656,657,279,1006,554,471,470,861,910,1012,517,937,518,528,608 and 544 was key in providing proof that indeed the above-mentioned registration records had either been closed and new ones opened with other numbers or sub-divisions having been undertaken and new numbers created.

74. The absence of such evidence in the court’s view goes to the core duty of proving a prima facie case against the proposed 57th defendant which the applicants have failed to discharge.

75. So far, the green cards adduced in court by the proposed 57th defendant regarding parcels Transmara/nkararo/521,1269,1176,290,280,500,492,494 and 294,937,518,528,608 And 544 indicate that the proposed 58th defendant to the 62nd defendant are the first registered owners of the above-mentioned parcels.

76. The provisions of Land Registration Act No 3 of 2012 and in particular section 26 reads as follows; -“The first proprietor noted in the register of any parcel or interest in land pursuant to an allocation process shall be the registered proprietor and the registrar shall note in the land register such restrictions or conditions as may be necessary”

77. In conclusion therefore, the court’s finding is that the applicants have not succeeded to demonstrate prima facie case with a probability of success against the proposed 57th defendant.

78. The Second limb in the consideration of the present applicationfor injunction is a demonstration by the applicants that unless the injunction is issued, the applicants might suffer irreparable injury.

79. The applicants in this limb is required to demonstrate a clear threat or injury that may occur as a result of failure to issue the injunction prayed for.

80. In this particular case, the applicants would like this court to injunct the proposed 57th defendant from issuing any further proprietorship documents in form of title deeds, leases and/or charges and/or dealing in any other way adverse to the interests of the applicants herein in relation to the disputed parcels of land in the further further amended plaint dated March 19, 2020.

81. Referring to the further further amended plaint dated March 19, 2020, paragraph 5 therein states that the plaintiffs herein are residents of Nkararo Location which was opened as Nkararo adjudication section in May 1985 under the provisions of the Land Adjudication Act, cap 284 laws of Kenya.

82. Paragraphs 6 all the way to 46 of the further further amended plaint dated March 19, 2020 provide for the various parcels of land which are being claimed by the applicants.

83. The applicants in their further further amended plaint dated March 19, 2020 use two key phrases “was and still is the occupant” or “the parcel belongs to……………………………………..”.

84. Based on the above pleadings, the trial court on the July 18, 2019 issued an order of Status Quoto ensure that the said disputed properties are maintained as they were.

85. The court’s interpretation of the applicants pleadings and the orders issued by the court on the July 18, 2020 is that the disputed parcels of land in the further further amended plaint dated March 19, 2020 have not been registered and or issued with the appropriate title deeds.

86. The disputed parcels of land contained in further further amended plaint dated March 19, 2020 are still subject to adjudication by the 56th defendant.

87. The orders issued by the court on the July 18, 2019 forestalled any further actions by the 56th defendant in either forwarding the adjudication register or any other documents to the proposed 57th defendant for further action.

88. The applicants have not provided any documentary evidence in this present applicationshowing that the 56th defendant disregarded the orders issued on the July 18, 2019 and subsequently the proposed 57th defendant proceeded to create the registers and/or titles of the properties claimed and/or in occupation of the applicants.

89. In the absence of such evidence, the court takes judicial notice of the orders issued on the July 18, 2019 to be valid and legally binding on all the parties in this suit.

90. Consequently therefore, the applicants rights and/or their occupation on the disputed parcels of land have no threat of being infringed and/or interfered with by any of the defendants until conclusion of this suit.

91. In conclusion therefore, the applicants have not discharged or proved this second limb of the parameters to be considered in granting an injunction.

92. The last limb for consideration is that in the event the court is in doubt of the two other parameters of consideration, then the court should then decide the applicationon a balance of convenience.

93. However, the court has made definite findings on the two other parameters of granting an injunction and held that the applicants have not proved both parameters.

94. In other words, there is no doubt in the court’s mind that this applicationshould not be granted.

C.Whether or not the applicant has placed before the court suffient reasons to direct the proposed 57{{^th}} defendant to produce and/make available the ownership records regarding the disputed properties in this suit. 95. The last prayer in this applicationis the order seeking the court to direct the proposed 57th defendant to produce and/make available the ownership records regarding the disputed properties in this suit.

96. The further further amended plaint dated March 19, 2020 declared the disputed properties to be subject to the Nkararo adjudication section which is being undertaken by the 56th defendant.

97. The further further amended plaint dated March 19, 2020 does not give any particulars of the disputed properties which has been registered and/or the proposed 57th defendant has created any proprietorship documents.

98. The properties that prompted the applicants to file this present applicationare namely Transmara/nkararo/521,1269,1176,290,280,500,492,494 and 294.

99. The green cards of these properties hereinabove have been duly produced in court on the 3rd of December 2020.

100. In the absence of a proper description of any other titles which the applicants would like to be produced by the proposed 57th defendant, this court would be reluctant to grant the applicants prayer.

101. In conclusion therefore, this court makes the following final orders as pertains the plaintiffs/applicants applicationdated December 9, 2021. 1.The plaintiffs/applicants prayer for joinder of the proposed 58th, 59th, 60th ,61st and 62nd defendants is hereby granted.2. The plaintiffs/applicants are hereby granted leave of twenty (21) days from today’s date to prepare, file and serve the amended further further amended plaint.3. All the defendants shall have leave of twenty-one (21) days upon service of the amended further further amended plaint to prepare, file and serve their responses thereof.4. The plaintiffs/applicants shall have leave of Fourteen (14) for file any Response to the defendants responses if need be.5. Each party herein shall bear their own costs.

DATED, SIGNED & DELIVERED VIRTUALLY IN KILGORIS ELC COURT ON DAY OF 25TH JULY 2022. EMMANUEL.M.WASHEJUDGEIN THE PRESENCE OF:COURT ASSISTANT:ADVOCATES FOR THE applicant: NANDAADVOCATES FOR THE RESPONDENT: N/A