[2022] KEELC 14431 (KLR)

Kombo & another v Matano and 5 others (Environment & Land Case 75 of 2021) [2022] KEELC 14431 (KLR) (26 October 2022) (Ruling)

Neutral citation: [2022] KEELC 14431 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 75 of 2021

LL Naikuni, J

October 26, 2022

Between

Ramadhan Matano Kombo

1st Plaintiff

Salim Abdallah Salim

2nd Plaintiff

and

Ramadhan Kombo Matano and 5 others

Defendant

Ruling

I. Introduction 1. The 1st and 2nd Plaintiffs/Applicants herein – Ramathan Matano Kombo and Salim Abdallah Salim herein moved this Court by filing a Notice of Motion application dated 27th April, 2021 for its determination. It was brought under the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act. Cap. 21 and Order 40, Order 51 Rule 1 of the Civil Procedure Rules, 2010.

II. The 1st & 2nd Plaintiffs/Applicants case 2. The 1st & 2nd Plaintiff/Applicants herein sought the following orders: -a.Spent;b.Spent;c.That Pending the hearing and determination of this suit, the Defendants by themselves, their agents, successors, and/or any assigns be restrained from selling, transferring, and/or in any other way dealing with the plots known as 2806/V/MN (CR 75369) and 2805/V/MN;d.That the OCS Jomvu Police Station to ensure compliance with the orders.e.That the Defendants/Respondents bear the costs.

3. To put matters into context, the 1st and 2nd Plaintiffs/Applicants instituted this suit by way of a Plaint filed alongside this application. The 1st and 2nd Plaintiffs/Applicants plead that the 1st, 2nd, and 3rd Defendants/Respondents fraudulently subdivided the plot known as 375/V/MN (CR 6477) (hereinafter “the Suit Land’) which was registered in the name of four siblings (now deceased) as tenants in common in equal shares to which the 1st & 2nd Plaintiffs/Applicants were appointed administrators of their estates. It is their case that while they were proceeding with the succession cause that was filed in 2018, they were unaware that the 1st to 3rd Defendants/Respondents later in the year 2019 had instituted succession proceedings in Kadhi’s courts. They contended that the 1st -3rd Defendants/Respondents misrepresented themselves in the Kadhi court and they were issued with a court order to be administrators of the estate of the deceased proprietors, orders which were contradictory to the Magistrate’s court. Consequent to the Kadhi’s Court Order the 1st and 2nd Plaintiffs/Applicants aver that the 1st to 3rd Defendants/Respondents fraudulently subdivided the suit land into two plots of land, 2806/V/MN (CR 75369) which was transferred to the 4th-6th Defendants on 2nd September 2020 and 2805/V/MN that is yet to be disposed of. It is for these reasons that the plaintiffs pray for judgment against the defendants for inter alia a declaration that the 1st-3rd Defendants/Respondents had no authority to subdivide the suit land, revocation of the title deeds of 2806/V/MN (CR 75369) and 2805/V/MN, and mandatory injunction restraining the Defendants/Respondents from dealing in any way with plots 2806/V/MN (CR 75369) and 2805/V/MN.

4. Now back to this instant application by the 1st and 2nd Plaintiffs/Applicants herein. The application was based on the grounds, facts and averments made out in the 14 Paragraphed Supporting Affidavit of Ramadhan Matano Kombo sworn and dated 27th April, 2021together with and ten (10) annextures marked as “RMK 1 to 10” annexed thereto. He deponed as the 1st Plaintiff/Applicant herein had the authority to swear this affidavit on behalf of the 2nd Plaintiff/Applicant. He averred that both of the Plaintiffs/Applicants herein were the heirs and duly appointed Legal Administrators to the estate of the deceased proprietors of the suit land vide a confirmation of Grant issued on 27th November 2019. They reiterated that the 1st to 3rd Defendants/Respondents had fraudulently through misrepresentation subdivided Plot Known as 375/V/MN CR. 6477) measuring approximately 6. 63 acres located at Jomvu in County of Mombasa into Plot No. 2806/V/MN (CR. 75369) and Plot No. 2805/V/MN (CR. 75368) and consequently sold Plot No. 2805/V/MN (CR. 75368) to the 4th, 5th and 6th Defendants/Respondents.

5. He further deposed that he was aware that while they were proceeding on with Magistrate’s Succession Causes the 1st and 2nd Defendants/Respondents instituted parallel proceedings for Succession of the registered deceased owners of the suit property in the Khadis court through Khadhis Court (Mombasa) Succession Cause No. 84 of 2019, 97 of 2019 and 98 of 2019 and which the 1st, 2nd and 3rd Defendants/Respondents illegally obtained orders as administrators of the said estate consequently sub - dividing the suit land and transferring the same to the 4th to 6th Defendants/Respondents.

6. He held that the Plaintiffs/Applicants had a “Prima facie” with high probabilities of success. They contended that the sub - division and sale of part of the suit land were fraudulent and illegal and unless the court issued the Injunction orders sought restraining the 1st to the 6th Defendants/Respondents from dealing with the suit land pending the determination of this suit, the 1st to the 6th Defendants/Respondents herein would further sell the sub - divided plots or deal with them to the detriment of the 1st and 2nd Plaintiffs/Applicants and other heirs thus causing irreparable losses which could not be compensated by way of monetary damages. He argued is the orders sought were granted the Defendant would not be prejudiced whatsoever.

III.The 4th, 5th & 6th Defendants/Respondents case 7. The 4th , 5th and 6th Defendants/Respondents herein filed their joint response vide a ten (10) Replying Affidavit sworn by Abdulhakim Abeid Khamisi, Jamal Abeid, and Mohamed Abeid Khamisi the said Defendants/Respondents herein and dated 15th June, 2021 and two annextures Marked as “AJM – 1 to 2”). They deposed that they purchased Plot no. 2806/V/MN by following the due process of the law and they subsequently acquired good title after they confirmed the succession proceedings which had been concluded and that there were no appeal preferred. According to them, they were bona fide purchasers for value without notice and had a good title from the 1st to 3rd Defendants. In furtherance to this, they deposed that they bought the property which was vacant and after the purchase, they took vacant possession of the land and have been in occupation and possession thereof without any intention of selling the property.

8. They argued that the Plaintiffs/Applicants herein had not established the conditions for grant of the Orders sought as they had no prima facie case and never demonstrate what irreparable loss they stood to suffer if the orders sought were not granted. The Defendants/Respondents opined that the application was devoid of merit and hence urged Court to dismiss it with Costs. argued that the application

IV. The Supplementary Affidavit by the 1{{^st}} & 2{{^nd}} Plaintiffs/Applicants 9. On 3rd March, 2022, the 1st and 2nd Plaintiffs/Applicants herein filed a four (4) Paragraphed Supplementary Affidavit sworn by the 1st Plaintiff/Applicant and dated 2nd March, 2022. He deposed that the Judgment, decree, and orders of the Kadhi’s Court in Succession No. 97 of 2019 and Succession Cause No. 84 of 2019 which gave the 1st to 3rd Defendants/Respondents herein power to sell had since been set aside as per the annexed Khadhi’s Court Orders marked as annexetures “RMK – 1 & 2”.

10. He deposed that the setting aside order lent credence to the alleged fraud and illegalities perpetuated by the Defendants/Respondents. It is for these reasons that they stressed on being granted the injunctive orders as failure to it would cause more irreparable suffering of loss and harm.

V. Submissions 11. On 7th March, 2022, while all parties were present in Court, they were directed to have the Notice of Motion application dated 27th April, 2021 be disposed off by way of written submissions within a set out timeframe.Pursuant to that they all compiled and the Honorable Court reserved a date for the delivery of the Ruling whatsoever.

A. The Written Submissions by the 1st & 2nd Plaintiffs/Applicants 12. On 11th April, 2022, the Learned Counsels for the 1st and 2nd Plaintiffs/Applicants the Law firm of Messrs. Mwawasaa & Company Advocates filed their written Submissions dated 8th April, 2022. Mr. Mwawasaa Advocate, the Learned Counsel for the 1st and 2nd Plaintiffs/Applicants herein submitted mainly on two issues. First, on whether the application had met the conditions set out in the now famous case of “Giella - Versus - Cassman Brown case. He submitted that the setting aside of the Kadhi’s orders that gave the 1st to 3rd Defendants/Respondents power to sell made the sale to the 4thto 6th Defendants/Respondents voidable if not void ab initio. The Counsel submitted that this was enough evidence to establish “a prima facie case”.

13. Secondly, he submitted on whether the 1st and 2nd Plaintiffs/Applicants stood to suffer irreparable loss that could not be compensated by way of monetary damages. The Counsel submitted that since the Succession cause needed to be heard afresh, then any dealings on the suit land would cause irreparable harm to the beneficiaries. With regard to the last condition on the balance of convenience, the Learned Counsel argued that the same tilted in favor of the 1st and 2nd Plaintiffs/Applicants herein taking that the Succession Cause instituted before the Kadhi court was flawed and until that process was finalized, then the 1st to the 6th Defendants/Respondents ought not to deal with the suit property. The Counsel further averred that the injunctive orders sought should be granted based on the doctrine of “Lis Pendens”. In essence the suit property needed to be preserved during the pendency of the litigation process. To buttress his point, he cited the case of “Raftali Ruthi Kinyua – Versus – Patrick Thuita Gachure & City Council of Nairobi” .

14. Lastly, the Counsel opined that issues to do with land issue were emotive. Further, he held that it was a fact that the Court would not micro manage the status on the ground. Thus, to avoid any further harm being e Counsel urged that there be an order directing the Officer In Charge of the Jomvu Police Station (OCS) to ensure compliance of the court order. In conclusion, he held that the application had merit and should be allowed.

B. The Written Submissions by the 4th to 6th Defendants/Respondents 15. On 6th May, 2022, the Learned Counsels for the 4th to 6th Defendants/Respondents herein, the Law firm of Messrs. Khatib & Company Advocates filed their written Submissions dated 5th may, 2022. Mr. Mbwiza Advocate submitted that the 1st and 2nd Plaintiffs/Applicants herein had failed to satisfy the conditions for granting orders of injunction as set out in the case of “Giella Versus - Cassman Brown (Supra) and the meaning of “Prima Facie case” as founded in the case of MRAO Limited – Versus – First American Bank (K) Limited”

16. The Counsel recounted the averments as already deponed under Paragraph 2 of the Supporting Affidavit to the effect that the 1st and 2nd Plaintiffs/Applicants claimed they were the duly appointed Administrators of the Estate of the late Matano Bin Kombo who was the registered owner of the property known as land Reference Numbers 375/V/MN CR 6477 which was sub – divided into the two suit properties. He further re capped on the averments made out by the Plaintiffs/Applicants to the effect that they pleaded that the Judgement and orders in Succession cause no. 97 of 2019 and 84 of 2019 which gave the 1st to 3rd Defendants/Respondents herein power to Sub – divide and sell the s suit properties were set aside.

17. He argued that in response to all these allegations, the 4th to 6th Defendants/Respondents purchased the suit land following due process of the law after they confirmed that Succession Cause had been concluded and there was no appeal preferred so far. Subsequently, they acquired good title. To buttress his point Counsel cited the Court of Appeal case of “Weston Gitonga & 10 others – Versus - Peter Rugu Gikanga & Another (2017) eKLR which provided the pre – requisite of a bona fide purchaser for value. He further submitted that a bona fide purchaser for value blocked any possible claim against the 4th to 6th Defendants/Respondents herein. Hence, as a result, he argued that there was no prima facie case was established by the Plaintiffs/Applicants to warrant being granted the orders sought.

18. With regard to whether the Plaintiffs/Applicants would suffer any irreparable harm that would not be remedial in monetary compensation, the Counsel submitted that in the event the Plaintiffs/Applicants’ case succeeded, then they would be at liberty to recover the land from the 4th-6th Defendants/Respondents. Therefore, for that reason there was no irreparable harm to be suffered by the Plaintiffs/Applicants herein. On the last condition, Learned Counsel submitted that the balance of convenience tilted in favour of the 4th to 6th Defendants/Respondents as they were already in actual possession of the land having bought it as bona fide purchasers with full rights of ownership over the suit properties. The Counsel then urged Court to dismiss the application with Costs.

19. With regard to the Submissions by the 1st , 2nd and 3rd Defendants/Respondents, at the time of writing this ruling, they had neither entered appearance despite summons to enter appearance having been taken out and served upon them in accordance with the averments contained in the seven (7) Paragraphed Affidavit of Service dated 22nd January, 2021 and filed in Court on 24th June, 2021 sworn by Mr. Nzaro Bakari Nguwa, a duly appointed High Court Process Server, a holder of a Certificate bearing Serial numbers CPS03793 and Reference Numbers 1134 issued on 29th September, 2020 nor of course filing any pleadings which included submissions whatsoever. Thus, I have only considered the filed pleadings and the Submissions by the Learned Counsels for the 1st & 2nd Plaintiffs/Applicants and the 4th, 5th and 6th Defendants/Respondents herein.

VI. Analysis and Determination 20. The Honorable Court has keenly assessed all the filed pleadings which included the supporting and replying affidavits, the written submissions, the Cited authorities and the relevant provisions of the Cosnstitution and Statutes with regard to the filed Notice of Motion application dated 27th April, 2021 by the 1st and 2nd Plaintiffs/Applicants herein.

21. So that the Honorable Court may arrive at an informed and reasonable decision on the subject matter, it has framed the following three (3) issues for its determination. These are:-a.Whether the 1st and 2nd Plaintiffs/Applicants herein through the filed Notice of Motion application dated 27th April, 2021 have met the required threshold for granting the injunction orders sought as provided for under the provisions of Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010. b.Whether the parties are entitled to the reliefs sought.c.Who will bear the Costs of the application.

ISSUE No. a). Whether the 1{{^st}} and 2{{^nd}} Plaintiffs/Applicants herein through the filed Notice of Motion application dated 27{{^th}} April, 2021 have met the required threshold for granting the injunction orders sought as provided for under the provisions of Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010. 22. In an application for injunction, the first port of call is the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010. The provision states as follows:-“Where in any suit it is proved by affidavit or otherwise—(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; orb.that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”

23. Additionally, it is well established and from the parameters set out in the now famous case of “Giella – Versus - Cassman Brown” (Supra), to be considered and qualify in an application for injunction, an Applicant must demonstrate that he met the three (3) basic pre – requisite conditions. Firstly, he has “a prima facie case” – (as defined in the case of “MRAO – Versus First American Bank (Supra) with a probability of success, Secondly, that he will suffer irreparable loss that cannot be adequately compensated by damages or Thirdly, that the balance of convenience tilts in his favour. In that regard, it is the applicant’s duty to demonstrate that it meets the test set in various decisions, leading among them, “Giella – Versus - Cassman Brown case (Supra).

24. Now, having set out the threshold for granting the injunction orders sought by the Plaintiffs/Applicants in the instant case, the Honorable Courts wishes to directly apply the same to the instant case. The substratum of this Notice of Motion application is that the 1st to 3rd Defendants/Respondents herein obtained orders from the Kadhi Court posing to be the duly appointed Legal Administrators of the estate of the late Matano Bin Kombo the then registered owner of the suit property – known as Land reference Numbers 375/V/MN CR 6477 which they caused its sub – division to Plot No. 2806/V/MN (CR 75369) and Plot 2805/V/MN and which they sold to the 4th to 6th Defendants/Respondents and likely an innocent 3rd party. In both their filed Supplementary Affidavit, the 1st and 2nd Plaintiffs/Applicants herein have annexed two orders from the Kadhi’s Court marked as “RMK – 1 & 2” respectively setting aside the Judgments of the Kadhi Court delivered on 16th May 2019. Indeed, from the said orders the Honorable Kadhi has directed that the succession causes be reopened and heard afresh. Further to this, the 1st and 3rd Defendants herein have been ordered to deposit the purchase price from the sale of plot 2806/V/MN (CR 75369) or to account for the details on how the said purchase price was distributed to the heirs/beneficiaries of the estate.

25. Therefore, based on these surrounding facts and inferences of the case, the fundamental issue to ponder on is whether the 1st and 2nd Plaintiffs/Applicants herein have demonstrated having “a Prima facie” case with a probability of success. In order to adequately respond to this query, the Honorable Court wishes to rely on the legal ratio founded in the case by the Court of Appeal of “MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) eKLR” which defined “a Prima facie” case as follows:-“The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are well settled. In Giella – Versus - Cassman Brown & Company Limited [1973] EA 358 to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner he was considering, which was in relation to the pleadings that had been put forward in that case….So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

26. Additionally, in the Court of Appeal case of “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others (2014)eKLR, the Court of Appeal agreed with the definition of a prima facie case in the case of “MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (supra). The court held as follows:-“We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”a.In the present application, the 1st and 2nd Plaintiffs/Applicants were only required to show that their rights were being violated or were likely to be violated. It is not in doubt that the Khadhi’s Cousrt adjudicated and made a decision on several issues pertaining these suit properties. These included the matter on the legal capacity of the 1st, 2nd and 3rd Defendants/Respondents as being the duly appointed Legal Administrators to the estate of the late Matano Bin Kombo who was the registered owner of the original parcel of land prior to the resultant sub – divisions and the validity of the title deeds arising from the sub – divisions and the subsequent sale to the 4th, 5th and 6th Defendants/Respondents and perhaps another 3rd Party by the 1st, 2nd and 3rd Defendants/Respondents herein. Consequently, upon the adjudication of these matters, on 17th June, 2021, the Honorable Khadhi’s Court ordered as follows that:-a.The Judgement dated and delivered on 16th May, 2019 by Hon. Kadhi Abdullahi. M. Salim and the order issued on 7th September, 2020 by Hon. Kadhi H. Vumbi are set aside.b.The suit is hereby reopened to be heard a fresh.c.The Applicant is enjoined in this suit as a Respondent.d.The Petitioner is ordered to deposit in Court the sum of Kenya Shillings Eight Million (Kshs. 8, 000, 000. 00) which are the proceeds of sale of Plot No. 2806/V/MN (CR. 75369) which is a sub – divided portion of Plot No. 375/V/MN (CR. 6477)e.The Petitioner is ordered to account on how the sum of Kenya Shillings Eight Million (Kshs. 8, 000, 000. 00) which are the proceeds of sale of Plot No. 2806/V/MN (CR. 75369) which is a sub – divided portion of Plot No. 375/V/MN (CR. 6477)was distributed among the heirs/beneficiaries.f.Costs of the application be borne by the Petitioner.Apparently, from the above graphic proceedings and decision by the Honorable Khadhi, there is a likelihood that the previous orders by the Khadhi’s Court that ostensibly gave the 1st to 3rd Defendants/Respondents of assumption as being the Legal Administrators to the estate of the deceased and hence power to sell the suit property was ideally obtained through fraudulent, illegal, and irregular manner. These are extremely serious issues which calls for intensive interrogation and assessment through a full trial. In the meantime, as we all await the conducting of full trial of the matter in the due course, I am fully persuaded based on the material already placed before me that the 1st and 2nd Plaintiffs/Applicants have demonstrated and established having a prima facie case” with a probability of success.

27. On whether the 1st and 2nd Plaintiffs/Applicants herein will suffer irreparable injury which cannot be compensated by damages unless temporary injunction is granted, equally, I am also persuaded.

28. What about the balance of convenience? The balance of convenience in this regard is to have the suit land remain in the status that it is currently, meaning there should be no more transaction on it including alienation, wastage, transferring, charging or any other transaction until the suit is heard and finally determined. I also have in mind that the objective of an injunction is to preserve the subject matter of the suit pending the hearing on the merits of the case. In other words, the balance of convenience tilts in favour of the 1st and 2nd Plaintiffs/Applicants herein.

ISSUE No. b). Who will bear the Costs of the Application 29. The issue of Costs, its trite law that it is at the discretion of the Court. Costs means the award that is granted to any party upon the conclusion of any legal action, process or proceedings of any litigation. The proviso of Section 27 (1) of the Civil Procedure Rules, 2010 provides that Costs follow the events. By events herein, it means the results or outcome of the said legal action, process or proceedings of the litigation.

30. In the instant case, taking that the 1st and 2nd Plaintiffs/Applicants herein having been able to successfully demonstrate the need to be granted the injunction orders against the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants/Respondents herein, it is therefore fair that they are awarded costs of the application to be borne by all the said Defendants herein.

VII. Conclusion & Disposition 31. The upshot of all this, and having conducted an elaborate analysis of the framed issues herein, the Honorable Court is completely satisfied that the 1st and 2nd Plaintiffs/Applicants herein have established a prima facie case on preponderance of probability. Thus, I proceed to make the following orders.a.That the Notice of Motion application dated 27th April 2021 filed by the 1st and 2nd Plaintiff/Applicants herein be and is hereby allowed.b.That the 1st - 3rd Defendants/Respondents herein be and hereby restrained from dealing adversely with all that Land known as land Reference Numbers no. 2805/V/MN pending the hearing and final determination of the suit.c.That the 4th - 6th Defendants/Respondents herein are also restrained from dealing adversely in any way with all that parcel of land known as Land Reference Numbers 2806/V/MN (CR 75369) pending the hearing and final determination of the suit.d.That for expediency sake, this matter to be heard and determined within the next one hundred and eighty days (180) from this ruling date. There should be a Pre – trial Conference under the provision of Order 11 of the Civil Procedure Rules, 2010 on 28th November, 2022. e.That the Officer in Charge (Commanding) Police Station (OCS), Jomvu Police Station to ensure full compliance of these Court orders without failure.f.That the costs of the application to be borne by the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants/Respondents herein.

32. It is ordered accordingly.

RULING DELIVERED, SIGNED AT MOMBASA AND DATED THIS……26TH………DAY OF ………..OCTOBER……………..2022HON. JUSTICE (MR) L.L. NAIKUNI, JUDGEENVIRONMENT & LAND COURT ATMOMBASAIn the presence of:-a. M/s. Yumna, the Court Assistant.b. Mr. Mwawasaa Advocate for the 1st & 2nd Plaintiffs/Applicants.c. No Appearance for the 1st, 2nd, 3rd, 4th, 5th & 6th Defendants/Respondents.RULING ELC. NO. 75 OF 2021 Page 5 of 5 JUSTICE L.L. NAIKUNI (JUDGE)