[2020] KEELC 1314 (KLR)

Source-derived case information.

Citation: [2020] KEELC 1314 (KLR)
Parties: Plaintiff: Marriot Africa International Limited; Defendant: Margaret Nyakinyua Murigu; Defendant: Mary Wanjiku Kanyotu; Defendant: Willy Kihara; Defendant: Kangaita Coffee Estate Limited; Interested Party: Ukombozi Holdings Ltd
Court: Environment and Land Court
Court Station: Environment and Land Court at Thika
Jurisdiction: Kenya
Case Number: Environment & Land Case 115 of 2019
Procedural Posture: Environment and Land Case / Ruling on Interlocutory Applications and Counterclaim
Outcome: Plaintiff's application for temporary injunction allowed; Defendants' counterclaim and application for injunction dismissed; costs to Plaintiff.
Judges: LN Gacheru
Legal Topics: Injunctive Relief, Locus Standi, Company Shareholder Rights, Land Title Disputes, Succession and Estate Administration
Source Language: en

Land and Property Civil Procedure Injunctive Relief Locus Standi Company Shareholder Rights Land Title Disputes Succession and Estate Administration

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Parties

Marriot Africa International Limited

Plaintiff

Margaret Nyakinyua Murigu

Defendant

Mary Wanjiku Kanyotu

Defendant

Willy Kihara

Defendant

Kangaita Coffee Estate Limited

Defendant

Ukombozi Holdings Ltd

Interested Party

Procedural Posture

Environment and Land Case / Ruling on Interlocutory Applications and Counterclaim

Legal Issues

1 Whether the 1st and 2nd Defendants have locus standi to bring a counterclaim on behalf of the estate of James Kanyotu regarding the suit property.
2 Whether the Plaintiff is entitled to interlocutory injunctive relief restraining the Defendants from interfering with the suit property.
3 Whether the Defendants are entitled to permanent or temporary injunctions and inhibition orders against the Plaintiff and Interested Party.

Ratio Decidendi

The court held that the 1st and 2nd Defendants, as administrators of the estate of a shareholder in Kangaita Coffee Estate Limited, lacked locus standi to bring a counterclaim for recovery of the suit property, as only the company itself could sue to recover its property. The Plaintiff, as the registered proprietor of the suit property, established a prima facie case for injunctive relief, as its rights to quiet possession were being infringed by the Defendants' actions, including caveat emptor advertisements and threats to third-party purchasers. The court found that the Plaintiff would suffer irreparable harm not compensable by damages if injunctive relief was denied. The Defendants'...

Court Disposition

Plaintiff's application for temporary injunction allowed; Defendants' counterclaim and application for injunction dismissed; costs to Plaintiff.

Orders

Temporary injunction restraining the 1st to 4th Defendants from trespassing, interfering with, or dealing with L.R 11261/76 or its subplots pending determination of the suit.
Temporary injunction restraining the 1st to 4th Defendants from evicting, harassing, or interfering with the Plaintiff, occupants, or purchasers of the suit property.

Full Case Text

Judgment text and source record

388 paragraphs

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 115 OF 2019

MARRIOT AFRICA INTERNATIONAL

LIMITED.................................................................PLAINTIFF/APPLICANT

VERSUS

MARGARET NYAKINYUA MURIGU........1STDEFENDANT/RESPONDENT

MARY WANJIKU KANYOTU.................2ND DEFENDANT/RESPONDENT

WILLY KIHARA.......................................3RD DEFENDANT/RESPONDENT

KANGAITA COFFEE ESTATE

LIMITED...................................................4TH DEFENDANT/RESPONDENT

AND

UKOMBOZI HOLDINGS LTD...................................INTERESTED PARTY

RULING

There are three Notices of Motion Applications, for determination. The first Application is the Notice of Motion Application dated 1st July 2019, by the Plaintiff/ Applicant seeking for orders that;-

1. THAT pending the hearing and determination of this suit, a temporary injunction do issue restraining the 1st, 2nd, 3rd, and 4th Defendants jointly and severally, whether by themselves, their agents, servants, employees or anyone authorized by them or acting on their behalf from trespassing on occupying, or in any other manner interfering with, or dealing with all that parcel of land known as L.R 11261/76 or any sub-plot ensuring from its sub-division or any portion thereof.

2. That pending the hearing and determination of this suit , a temporary injunction do issue restraining the 1st ,2nd 3rd and 4th Defendants jointly and severally, whether by themselves, their agents, servants, employees, or anyone authorized by them or acting on their behalf from evicting, threatening to evict, harassing or in any other manner interfering with the quiet enjoying and user by the plaintiff and other occupants and or other purchasers of all that parcel of land know as L.R 11261/76 or any sub-plot ensuing from its sub-division or any portion thereof.

3. That pending the hearing and determination of this suit , a temporary injunction do issue restraining the 1st ,2nd 3rd and 4th Defendants jointly and severally, whether by themselves, their agents, servants, employees, or anyone authorized by them or acting on their behalf from issuing any caveats emptor or carrying any advertisements in any newspaper or media or by way of any leaflet or similar advertising materials in respect of all that parcel of land know as L.R 11261/76 or any sub-plot ensuing from its sub-division or any portion thereof.

4. That pending the hearing and determination of this suit a temporary injunction do issue restraining the 1st 2nd 3rd and 4th Defendants jointly and severally, whether by themselves, their agents, servants, employees, or anyone authorized by them or acting on their behalf from registering any caveat or inhibition against the title to all that that parcel of land known as L.R 11261/76 or any sub-plot ensuing from its sub-division or any portion thereof.

5. That the officer commanding station, Ruiru police station, do assist in the enforcement of the order issued by this honourable court.

6. That the costs of this application be borne by the Defendants in any event.

The Application is premised on the grounds that the Plaintiff/ Applicant is the owner of the suit property having purchased the same pursuant to an agreement dated 5th February 2014, entered into between itself and Trendsetters Investments Limited. That the transfer of the suit property was registered in favour of the Plaintiff/Applicant on 21st August 2014. Further that the suit property had no encumbrance or inhibition or order that had been registered against it at the time of purchase. That the Plaintiff/Applicant has subdivided the suit property into more than one thousand (1000) sub-plots and has since sold a number of the ensuing sub- plots to third parties.

Further that on diverse dates the Defendants/Respondents, purporting to act on behalf of the estate of the late James Kanyotu, caused to be placed in the local Newspapers Advertisements entitled Caveat Emptor,alleging that the suit property belonged to Kangaita Coffee Estates Limited,and the estate of the late James Kanyotu, but that the said advertisements were fraudulent and misleading as the Plaintiff/Applicant has been the lawful and legally registered owner of the same. Further that the Defendants/Respondents have on various occasions trespassed against the suit property.

It was further contended that in High Court Civil Case Number 461 of 2012,inNairobi,the 2nd Defendant/Respondent, confirmed to the court that indeed the said Kangaita Coffee Estates Limited had sold the suit property to Trendsetters Investment Limited, and that the estate of the late James Kanyotu, did not have any claim against the said Trendsetters Investment Limited, or any person to whom Trendsetters Investment Limited had sold the said parcel of land to. Further that the 3rd Defendant/Respondent accepted payment of Kenya shilling thirty nine million (Kshs 39,000,000/=) as full and final payment and settlement for any claim that he had in respect of the sale of the suit property and therefore, in law cannot purport to challenge the Plaintiff’s/Applicant’s title to the then L.R No. 11261/76. Further that there is real and present danger that unless restrained by Court, the Defendants/Respondents will continue to harass the Plaintiff/ Applicant to its detriment.

In his supporting Affidavit sworn on 1st July 2019, Abdul Dawood Hassan,a Director of the Plaintiff/Applicant reiterated the contents of the grounds in support of the Application and further averred that he had been informed by Sanjay Kishorkumar Mashru, a Director of Trendsetters Investment Limited, which information he believed to be true that by an agreement dated 30th May 2018, entered into between the 2nd Defendant/Respondent and Trendsetters Investments Limited , the 2nd Defendant/Respondent confirmed that She had received the sum of Kshs 65,160,804/= as her share of the proceeds from the sale of the said parcel of land, L.R 11261/76, from Trendsetters Investments Limited and in consideration of a further sum of Kshs 30,000,000/=, she would irrevocably and permanently withdraw all pending litigations between herself together with the estate of the late James Kanyotu, in respect of any claim against the suit property .

The 2nd Defendant/Respondent Mary Wanjiku Kanyotu, swore a Replying Affidavit dated 11th July 2019, in opposition to the application dated 1st July 2019, by the Plaintiff. She averred that there was an Application pending hearing and determination before the Family Division in Nairobi in Succession Cause No. 1239 of 2008. She further averred that the suit property has been subdivided into several sub plots, and sold to third parties and said sale and transfers shall continue unless the Court intervenes.

It was her contention that the act of purportedly signing the agreement by her was allegedly done before a lawyer known as Odhiambo M.T Adala, one year before the agreement was entered into as her signature was allegedly witnessed in 2011,while the sale was allegedly conducted in 2012.

The Application is further opposed by the 3rd Defendant/ Respondent who swore a Replying Affidavit dated 22nd July 2019, and averred that he is one of beneficiary of the Estate of James Kanyotu and further averred that he is in support of the Application by the 1st and 2nd Defendants/ Respondents dated 15th July 2019. It was his contention that the Plaintiff/ Applicant did not get a clean title. Further that the alleged initial Sale Agreement of the suit property between the alleged former owner Trendsetters Investments Limitedand Kangaita Coffee Estate Limited dated 19th April 2012, indicates that Trendsetters Investments Limited was only buying a part of the property and that there was going to be subdivision of the suit property.That there is no way the Plaintiff/Applicant herein would have been able to acquire ownership of the whole suit property while the party it allegedly bought the property from, did not have full ownership of the said property.

He further averred that James Kanyotu (deceased) was the majority shareholder of Kangaita Coffee Estate limited, and that there is pending a Succession Cause number1239of2008,at the High Court Nairobi, Family Division, where there are several subsisting Court Orders barring any dealing in the deceased’s property, pending the determination of the said Succession Cause.He contended that when Trendsetter Investments Limited, allegedly bought part of the suit property, there was a specific inhibition registered on the title of the suit property, but Trendsetter Investments Limited, throughHCCC No. 461 of 2012, mischievously sued the Registrar of Land and the Attorney Generalfor the removal of the inhibition, but did not enjoin the Estate of James Kanyotu or any of the Defendants herein who are Administrators and beneficiaries of the said estate. That the said Trendsetters investments Ltd got exparte orders and eventually exparte Judgment for the unlawful removal of the inhibition on the suit property.

He further averred that the exparte orders and Judgement were issued without Jurisdiction and the same was confirmed by the Commercial Division of the High Court on the 16th May 2019, where the court noted that it had no jurisdiction to issue the initial exparte orders removing the inhibition by the Family Division in a Succession Cause. He further averred that Trendsetter Investments Limited, stated in the attached title deed to the Plaintiff’s/Applicant’s Supporting Affidavit that it paid Kshs 350,000,000/=, while the attached sale agreement indicates that it bought part of the suit property for kshs 700,000,000/= a clear illegality. He further contended that the suit property is currently worth Kshs 10,000,000,000/= and was worth more than what is stated by the Plaintiff and that Trendsetter Investments Limited did not get the requisite consent to transfer the land from the Commissioner of Lands.

It was his further contention that one of the Directors of the Plaintiff/Applicant, who signed on the Sale Agreement between the Plaintiff/Applicant and Trendsetter Investments Limited named as Amos Otieno Adwera, does not appear as one of the Directors of Plaintiff/Applicant in the CR12. He further averred that the Plaintiff/Applicant has not attached any documentation or supporting evidence showing how it paid Kshs.700,000,000/= to Trendsetter Investments Limited and how Trendsetter Investments Limited paid kshs.700,000,000/= or kshs 350,000,000/= to Kangaita Coffee Estate Limited.

It was his contention that the prayers sought by the Plaintiff/ Applicant is to prevent the Defendants/ Respondents from issuing Caveat Emptors are unattainable, because as beneficiaries and Administrators of the Estate of James Kanyotu, they have an inherent right to claim, fight for and agitate for all properties belonging to the said Estate and the said right cannot be curtailed.

Further that neither him nor the 2nd Defendant were owners of the suit property and therefore, they had no right or authority to sell the same and could not have sold it. He also averred that he received the cheque from Kamlesh Pattni in the presence of Mr. Odhiambo M.T Adala, Advocate, and that he was being given the money to persuade him to cease pursuing the recovery of the suit property, but that he failed in his persuasion and he therefore denied relinquishing any right

He alleged that one Jane Gathoni Muraya, one of the administrators of the Estate of James Kanyotu admitted in open court that she gave the title deed of the suit property to Kamlesh Pattni, as collateral for a Kshs.50,000,000/= loan and that the said action was illegal as it was not sanctioned by the Succession Court. He denied that the Defendants/ Respondents have any contract with the Plaintiff /Applicant or any other person in regards to the suit property, capable of being breached.

The 4th Defendant/Respondent swore a Replying Affidavit dated 13th August 2019, in opposition to the Application dated 1st July 2019, throughMary Wanjiku Kanyotu,one of the Directors of the 4th Defendant. She averred that the suit property has been subdivided into several sub plots, and transferred to third parties and the same shall continue being transferred unless the court intervenes.

It was her contention that the suit property was soldillegally as it was registered in the name of Kangaita Estate Limited and it formed part of the Estate of James Kanyotu and that orders were issued irregularly by Justice Mutava, vacating the orders issued in the Succession Cause which led to the alleged sale of this parcel of land. It was her contention that Amos Otieno Adwera,signed the Sale Agreement between the Plaintiff and Trendsetters Investments Limited, bringing into question the validity of the sale agreement and subsequent transactions pertaining to the suit property. She alleged that her signature on the sale agreement was imported from an agreement that she had signed in 2011, for a different Sale transaction. She attached the same to the sale agreement and contended that the suit property forming part of the Estate of the late James Kanyotu, could not be sold without the Succession Court in Succession Cause No. 1239 of 2008, granting an Order for the sale and consequently supervising the transaction. Further that an offer of purchase of the suit property ought to have been issued to the beneficiaries for their consent. She acknowledged that she received about Kenya shillings sixty five million (kshs 65,000,000/=)in her account which she indicated in the Succession Cause No. 1239 Of 2008. She further averred that only 10% of parcel of land has been sold and that titles purportedly issued are under investigations because from the sale agreements with the purchasers, the Vendor of the suit property is known as Ukombozi Holding Limitedand not the Plaintiff /Applicant herein. It was her contention that they published in the local dailies a Caveat Emptoradvertisements to secure the estate from waste. She denied that she had stated that the Estate of James Kanyotu did not have any claim against the Interested Party. Further that the documents attached as Exhibit ADH9, should be expunged from the records as they are misleading.

On 14th August 2019, Jim Kenny Kimani, a Director of the Interested Party swore an Affidavit in support of the Plaintiff’s/ Applicant’s Application and in response to the 2nd Defendant’s/ Respondent’s Replying Affidavit and averred that the Interested Party was incorporated to enable members of the Deliverance Church and other individuals acquire real estate property He also averred that the Interested Party conducted due diligenceprior to its purchase of the suit property and has since caused the subdivision of the suit property. Further that the subdivisions were in accordance with the law and that the Plaintiff/Applicant and the Interested Party are in possession of the suit property. That the 2nd Defendant/ Respondent received monies towards the purchase and cannot complain of disparities in the contract. It was his contention that the suit property was never owned by the Estate of James Kanyotu and reiterated that the 4th Defendant/ Respondent is subject to the Company’s Act

The 2nd Application is the one dated 15th July 2019, by the 1st and 2nd Defendants seeking for orders that;

1. Spent

2. That a permanent injunction be issued restraining the Defendants whether by itself, themselves and or their agents, servants, employees or anyone authorized by it and acting on its behalf from trespassing on, occupying, transferring, intermeddling, advertising for the sale, disposing off, letting, leasing, building or otherwise howsoever interfering with the ownership of title or in any other manner interfering with or dealing with all that parcel of land known as L.R. No. 11261/76 and any sub plots ensuing from its alleged subdivision or any portion thereof pending the hearing and determination of the counterclaim as stated below.

1. L.R11261/78 252. L.R.11261/327 503. L.R.11261/578 754. L.R.11261/827

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90. L.R.11261/166 361. L.R.11261/416 591. L.R.11261/670 841. L.R.11261/916

91. L.R.11261/167 362. L.R.11261/417 592. L.R.11261/671 842. L.R.11261/917

92. L.R.11261/168 363. L.R.11261/418 593. L.R.11261/672 843. L.R.11261/918

93. L.R.11261/169 364. L.R.11261/419 594. L.R.11261/673 844. L.R.11261/919

94. L.R.11261/170 365. L.R.11261/420 595. L.R.11261/674 845. L.R.11261/920

95. L.R.11261/171 366. L.R.11261/421 596. L.R.11261/675 846. L.R.11261/921

96. L.R.11261/172 367. L.R.11261/422 597. L.R.11261/675 847. L.R.11261/923

97. L.R.11261/173 368. L.R.11261/423 598. L.R.11261/677 848. L.R.11261/924

99. L.R.11261/174 369. L.R.11261/424 599. L.R.11261/678 849. L.R.11261/925

100. L.R.11261/175 370. L.R.11261/425 600. L.R.11261/679 850. L.R.11261/926

101. L.R.11261/176 371. L.R.11261/426 601. L.R.11261/680 851. L.R.11261/927

102. L.R.11261/177 372. L.R.11261/427 602. L.R.11261/681 852. L.R.11261/928

103. L.R.11261/178 373. L.R.11261/428 603. L.R.11261/682 853. L.R.11261/929

104. L.R.11261/179 374. L.R.11261/429 604. L.R.11261/683 854. L.R.11261/930

105. L.R.11261/180 375. L.R.11261/430 605. L.R.11261/684 855. L.R.11261/931

106. L.R.11261/181 376. L.R.11261/431 606. L.R.11261/685 856. L.R.11261/932

107. L.R.11261/182 377. L.R.11261/432 607. L.R.11261/686 857. L.R.11261/933

108. L.R.11261/183 378. L.R.11261/433 608. L.R.11261/687 858. L.R.11261/934

109. L.R.11261/184 379. L.R.11261/434 609. L.R.11261/688 859. L.R.11261/935

110. L.R.11261/185 380. L.R.11261/435 610. L.R.11261/689 860. L.R.11261/936

112. L.R.11261/186 381. L.R.11261/436 611. L.R.11261/690 861. L.R.11261/937

113. L.R.11261/187 382. L.R.11261/437 612. L.R.11261/691 862. L.R.11261/938

114. L.R.11261/188 383. L.R.11261/438 613. L.R.11261/692 863. L.R.11261/939

115. L.R.11261/189 384. L.R.11261/439 614. L.R.11261/693 864. L.R.11261/940

116. L.R.11261/190 385. L.R.11261/440 615. L.R.11261/694 865. L.R.11261/941

117. L.R.11261/191 386. L.R.11261/441 616. L.R.11261/695 866. L.R.11261/942

118. L.R.11261/192 387. L.R.11261/442 617. L.R.11261/696 867. L.R.11261/943

119. L.R.11261/193 388. L.R.11261/443 618. L.R.11261/697 868. L.R.11261/944

120. L.R.11261/194 389. L.R.11261/444 619. L.R.11261/698 869. L.R.11261/945

121. L.R.11261/195 390. L.R.11261/445 620. L.R.11261/699 870. L.R.11261/946

122. L.R.11261/196 391. L.R.11261/446 621. L.R.11261/700 871. L.R.11261/947

123. L.R.11261/197 392. L.R.11261/447 622. L.R.11261/701 872. L.R.11261/948

124. L.R.11261/198 393. L.R.11261/448 623. L.R.11261/702 873. L.R.11261/949

125. L.R.11261/199 394. L.R.11261/449 624. L.R.11261/703 874. L.R.11261/950

126. L.R.11261/200 395. L.R.11261/450 625. L.R.11261/704 875. L.R.11261/951

127. L.R.11261/201 396. L.R.11261/451 626. L.R.11261/705 876. L.R.11261/952

128. L.R.11261/202 397. L.R.11261/452 627. L.R.11261/706 877. L.R.11261/953

129. L.R.11261/203 398. L.R.11261/453 628. L.R.11261/708 878. L.R.11261/954

130. L.R.11261/204 399. L.R.11261/454 629. L.R.11261/709 879. L.R.11261/955

131. L.R.11261/205 400. L.R.11261/455 630. L.R.11261/710 880. L.R.11261/956

132. L.R.11261/206 401. L.R.11261/456 631. L.R.11261/711 881. L.R.11261/957

133. L.R.11261/207 402. L.R.11261/457 632. L.R.11261/712 882. L.R.11261/958

134. L.R.11261/208 403. L.R.11261/458 633. L.R.11261/713 883. L.R.11261/959

135. L.R.11261/209 404. L.R.11261/459 634. L.R.11261/714 884. L.R.11261/960

136. L.R.11261/210 405. L.R.11261/460 635. L.R.11261/715 885. L.R.11261/961

137. L.R.11261/211 406. L.R.11261/461 636. L.R.11261/716 886. L.R.11261/962

138. L.R.11261/212 407. L.R.11261/462 637. L.R.11261/717 887. L.R.11261/963

139. L.R.11261/213 408. L.R.11261/463 638. L.R.11261/718 888. L.R.11261/964

140. L.R.11261/214 409. L.R.11261/464 639. L.R.11261/719 889. L.R.11261/965

141. L.R.11261/215 410. L.R.11261/465 640. L.R.11261/720 890. L.R.11261/966

142. L.R.11261/216 411. L.R.11261/466 641. L.R.11261/721 891. L.R.11261/967

143. L.R.11261/217 412. L.R.11261/467 642. L.R.11261/722 892. L.R.11261/968

144. L.R.11261/218 413. L.R.11261/468 643. L.R.11261/723 893. L.R.11261/969

145. L.R.11261/219 414. L.R.11261/469 644. L.R.11261/724 894. L.R.11261/970

146. L.R.11261/220 415. L.R.11261/470 645. L.R.11261/725 895. L.R.11261/971

147. L.R.11261/221 416. L.R.11261/471 646. L.R.11261/726 896. L.R.11261/972

148. L.R.11261/222 417. L.R.11261/472 647. L.R.11261/727 897. L.R.11261/973

149. L.R.11261/223 418. L.R.11261/473 648. L.R.11261/728 898. L.R.11261/974

150. L.R.11261/224 419. L.R.11261/474 649. L.R.11261/729 899. L.R.11261/975

151. L.R.11261/225 420. L.R.11261/475 650. L.R.11261/730 900. L.R.11261/976

152. L.R.11261/226 421. L.R.11261/476 651. L.R.11261/731 901. L.R.11261/977

153. L.R.11261/227 422. L.R.11261/477 652. L.R.11261/732 902. L.R.11261/978

154. L.R.11261/228 423. L.R.11261/478 653. L.R.11261/733 903. L.R.11261/979

155. L.R.11261/229 424. L.R.11261/479 654. L.R.11261/734 904. L.R.11261/980

156. L.R.11261/230 425. L.R.11261/480 655. L.R.11261/735 905. L.R.11261/981

157. L.R.11261/231 426. L.R.11261/481 656. L.R.11261/736 906. L.R.11261/982

158. L.R.11261/232 427. L.R.11261/482 657. L.R.11261/737 907. L.R.11261/983

159. L.R.11261/233 428. L.R.11261/483 658. L.R.11261/738 908. L.R.11261/984

160. L.R.11261/234 429. L.R.11261/484 659. L.R.11261/739 909. L.R.11261/985

161. L.R.11261/235 430. L.R.11261/485 660. L.R.11261/740 910. L.R.11261/986

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163. L.R.11261/237 432. L.R.11261/487 662. L.R.11261/742 912. L.R.11261/988

164. L.R.11261/238 433. L.R.11261/488 663. L.R.11261/743 913. L.R.11261/989

165. L.R.11261/239 434. L.R.11261/489 664. L.R.11261/744 914. L.R.11261/990

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167. L.R.11261/241 436. L.R.11261/491 666. L.R.11261/746 916. L.R.11261/992

168. L.R.11261/242 437. L.R.11261/492 667. L.R.11261/747 917. L.R.11261/993

169. L.R.11261/243 438. L.R.11261/493 668. L.R.11261/748 918. L.R.11261/994

170. L.R.11261/244 439. L.R.11261/494 669. L.R.11261/749 919. L.R.11261/995

171. L.R.11261/245 440. L.R.11261/495 670. L.R.11261/750 920. L.R.11261/996

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175. L.R.11261/249 444. L.R.11261/499 674. L.R.11261/754 924. L.R.11261/1000

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179. L.R.11261/253 448. L.R.11261/503 678. L.R.11261/758 928. L.R.11261/1005

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184. L.R.11261/258 453. L.R.11261/508 683. L.R.11261/762 933. L.R.11261/1010

185. L.R.11261/259 454. L.R.11261/509 684. L.R.11261/764 934. L.R.11261/1011

186. L.R.11261/260 455. L.R.11261/510 685. L.R.11261/765 935. L.R.11261/1012

187. L.R.11261/261 456. L.R.11261/512 686. L.R.11261/766 936. L.R.11261/1013

188. L.R.11261/262 457. L.R.11261/513 687. L.R.11261/767 937. L.R.11261/1014

189. L.R.11261/263 458. L.R.11261/514 689. L.R.11261/768 938. L.R.11261/1015

190. L.R.11261/264 459. L.R.11261/515 690. L.R.11261/769 939. L.R.11261/1016

191. L.R.11261/265 460. L.R.11261/516 691. L.R.11261/770 940. L.R.11261/1017

192. L.R.11261/266 461. L.R.11261/517 692. L.R.11261/771 941. L.R.11261/1018

193. L.R.11261/267 462. L.R.11261/518 693. L.R.11261/772 942. L.R.11261/1019

194. L.R.11261/268 463. L.R.11261/519 694. L.R.11261/773 943. L.R.11261/1020

195. L.R.11261/269 464. L.R.11261/520 695. L.R.11261/774 944. L.R.11261/1021

196. L.R.11261/270 465. L.R.11261/521 696. L.R.11261/775 945. L.R.11261/1022

197. L.R.11261/271 466. L.R.11261/522 697. L.R.11261/776 946. L.R.11261/1023

198. L.R.11261/272 467. L.R.11261/523 698. L.R.11261/777 947. L.R.11261/1024

199. L.R.11261/273 468. L.R.11261/524 699. L.R.11261/778 948. L.R.11261/1025

200. L.R.11261/274 469. L.R.11261/525 700. L.R.11261/779 949. L.R.11261/1026

201. L.R.11261/275 470. L.R.11261/526 701. L.R.11261/780 950. L.R.11261/1027

202. L.R.11261/276 471. L.R.11261/527 702. L.R.11261/781 951. L.R.11261/1028

203. L.R.11261/277 472. L.R.11261/528 703. L.R.11261/782 952. L.R.11261/1029

204. L.R.11261/278 473. L.R.11261/529 704. L.R.11261/783 953. L.R.11261/1030

205. L.R.11261/279 474. L.R.11261/530 705. L.R.11261/784 954. L.R.11261/1031

206. L.R.11261/280 475. L.R.11261/531 706. L.R.11261/785 955. L.R.11261/1032

207. L.R.11261/281 476. L.R.11261/532 708. L.R.11261/786 956. L.R.11261/1033

208. L.R.11261/282 477. L.R.11261/533 709. L.R.11261/787 957. L.R.11261/1034

209. L.R.11261/283 478. L.R.11261/534 710. L.R.11261/788 958. L.R.11261/1035

210. L.R.11261/284 479. L.R.11261/535 711. L.R.11261/789 959. L.R.11261/1036

211. L.R.11261/285 480. L.R.11261/536 712. L.R.11261/790 960. L.R.11261/1037

212. L.R.11261/286 481. L.R.11261/537 713. L.R.11261/791 961. L.R.11261/1038

213. L.R.11261/287 482. L.R.11261/538 714. L.R.11261/792 962. L.R.11261/1039

214. L.R.11261/288 483. L.R.11261/539 715. L.R.11261/793 963. L.R.11261/1040

215. L.R.11261/289 484. L.R.11261/540 716. L.R.11261/794 964. L.R.11261/1041

216. L.R.11261/290 485. L.R.11261/541 717. L.R.11261/795 965. L.R.11261/1042

217. L.R.11261/300 486. L.R.11261/542 718. L.R.11261/796 966. L.R.11261/1043

218. L.R.11261/301 487. L.R.11261/543 719. L.R.11261/797 967. L.R.11261/1044

219. L.R.11261/302 488. L.R.11261/544 720. L.R.11261/798 968. L.R.11261/1045

220. L.R.11261/303 489. L.R.11261/545 721. L.R.11261/799 969. L.R.11261/1046

221. L.R.11261/304 490. L.R.11261/546 722. L.R.11261/800 970. L.R.11261/1047

222. L.R.11261/305 491. L.R.11261/547 723. L.R.11261/801 971. L.R.11261/1048

223. L.R.11261/306 492. L.R.11261/548 724. L.R.11261/802 972. L.R.11261/1049

224. L.R.11261/307 493. L.R.11261/549 725. L.R.11261/803 973. L.R.11261/1050

225. L.R.11261/308 494. L.R.11261/550 726. L.R.11261/804 974. L.R.11261/1051

226. L.R.11261/309 495. L.R.11261/551 727. L.R.11261/805 975. L.R.11261/1052

227. L.R.11261/310 495. L.R.11261/552 728. L.R.11261/806 976. L.R.11261/1053

228. L.R.11261/311 497. L.R.11261/553 729. L.R.11261/807 977. L.R.11261/1054

229. L.R.11261/312 498. L.R.11261/554 730. L.R.11261/808 978. L.R.11261/1055

230. L.R.11261/313 499. L.R.11261/555 731. L.R.11261/809 979. L.R.11261/1056

231. L.R.11261/315 500. L.R.11261/556 732. L.R.11261/810 980. L.R.11261/1057

232. L.R.11261/316 501. L.R.11261/557 733. L.R.11261/811 981. L.R.11261/1058

233. L.R.11261/317 502. L.R.11261/558 734. L.R.11261/812 982. L.R.11261/1059

234. L.R.11261/318 503. L.R.11261/559 735. L.R.11261/813 983. L.R.11261/1060

235. L.R.11261/319 504. L.R.11261/560 736. L.R.11261/814 984. L.R.11261/1061

236. L.R.11261/320 505. L.R.11261/561 737. L.R.11261/815 985. L.R.11261/1062

237. L.R.11261/321 506. L.R.11261/562 738. L.R.11261/816 986. L.R.11261/1063

238. L.R.11261/322 507. L.R.11261/563 739. L.R.11261/817 987. L.R.11261/1064

239. L.R.11261/323 508. L.R.11261/564 740. L.R.11261/818 988. L.R.11261/1065

240. L.R.11261/324 509. L.R.11261/565 741. L.R.11261/819 989. L.R.11261/1066

241. L.R.11261/325 510. L.R.11261/566 742. L.R.11261/820 990. L.R.11261/1067

242. L.R.11261/326 511. L.R.11261/567 743. L.R.11261/821 991. L.R.11261/1068

3. That an inhibition order to be registered against any or all titles that have been issued pursuant to the alleged transfers and subsequent subdivisions of L.R. No. 11261/76, Ruiru including but not limited to plots listed in prayer 2 above;

4. That the honourable court be pleased to order that the County Police Commander, Kiambu County do assist in enforcing the said orders.

5. That the costs of this application be provided for;

The Application is premised on the grounds that that there is a suit pending determination in Succession Cause No. 1239 of 2008,where distribution of the estate is yet to be done. Further that there was another suit, being HCC No. 461 of 2012, instituted by the 2nd Defendant named in the counter-claim which has since been concluded by the Court’s ruling dated 18th May 2019, in which it held that it had no jurisdiction to hear and determine any of the issues brought before it as it was not an Environment & Land Court.Further that there is likelihood of further wasting, transfer, sale of the suit premises and the public being duped unless the Court grants the order sought since the Defendants/Applicants are likely to suffer irreparable loss if the said orders are not granted.

In support of the Application, Margaret Nyakinyua Muriguone of the Administrators of the Estate of the late James Kanyotu swore a Supporting Affidavit dated15th July 2019. She averred that there was an illegal sale of the suit property vide an alleged Sale Agreement dated 19th April 2012. It was her contention that the suit property was registered in the name of Kangaita Coffee Estate Limited,and formed part of the estate of James Kanyotu and it has been the subject of a Court Order issued by court in Succession Cause No.1239 of 2008. She denied that her co-administrator, the 2nd Defendant/Applicant together with John Kariuki Kanyotu signed a Sale Agreement between Kangaita Coffee Estate limited and Trendsetter Investments Limited and averred that the 2nd Applicant’s signature on the sale Agreement is a forgery, as it has obvious inconsistencies. SFurther that though from the CR12, the Plaintiff/ Applicant Company, has different Directors, it was a different Director that signed the alleged sale Agreement, bringing into question its authenticity. She further averred that no amount were deposited into any of the Estate’s accounts for distribution to the beneficiaries or settlement of the estate debts. She denied knowledge of any agreement dated5th February 2014,for the sale of the suit property.

Further that in Succession Cause no. 1239 of 2008, Justice Luka Kimaru ruled that the purported Directors had no authority to sell or transact and that there are several Court Orders, prohibiting any dealing or sale of estate’s property, unless by way of court order or consents of the parties. She further averred that the transfers which were effected were done illegally as no Land Control Board Consent was issued. That the Plaintiff/Applicant had already subdivided and sold a small portion of the original LR No. 11261/76, and that the illegal sale must be stopped as the sale was meant to ensure that the suit property ceased to exist so as to disenfranchise the beneficiaries of the estate of the late James Kanyotu.

Jim Kenny Kimani, a Director of the Interested Party swore a Replying Affidavit in response to the 1st Defendant’s application dated 15th July 2019. It was his contention that he has been advised by the Interested Party’s advocates on record that permanent injunction which is also a perpetual injunction is granted upon the hearing of the suit, as it settles the dispute with finality which are the orders sought by the 1st & 2nd Defendants in their application dated 15th July 2019. He averred that Trendsetters Investments Limited, were obligated to deal with the Directors of the 4th Defendant/Respondent and the payments made in accordance to the terms of the contract. Further that the Interested Party purchased the suit property from the Plaintiff and that there was a clear term of the said Sale Agreement that the Interested Party shall upon the execution of the agreement cause subdivision of the suit property and offer the subplots for sale to third parties and payments be used to pay the purchase price. That the subdivision was in compliance with the law and was approved by the necessary authorities and that the Interested Party is in the process of transferring titles to third parties . It was his contention that the property as claimed by the 1st Defendant does not exist and any orders over such property will be an exercise in futility and unenforceable.

He further averred that the Plaintiff/Applicant and Interested party have been in possession of the suit property and the Defendants/ Respondents do not have any claim over the suit property as the same is legally registered under the Plaintiff. He contended that the advertisements placed by the Defendants on the diverse dates in2018 and2019 purporting that the suit property belonged to the 4th Defendant/Respondent was misleading and without basis. It was his contention that he had been advised by the Law Firm of Guandaru Thuita and Co. Advocates, whose advice he believed to be true that the 4th Defendant/Respondent (Kangaita Coffee Estate limited ) is subject to the Companies Act and more specifically the principle of Corporate Personality.

He alleged that the signature of the 2nd Defendant/Respondent in the affidavit is similar to the signature in the sale agreement between 4th Defendant/Respondentand Trendsetters Investments Limited and similar to the signature on cheques produced as annextures. He further averred that the 2nd Defendant received various amount of money which she confirmed to have received. It was his contention that at no point was the suit property owned by the Estate of James Kanyotu, but was at all materials times owned by the 4th Defendant/Respondent.

Abdul Dawood Hassan,swore a Further Affidavit in response to the Replying Affidavit by the 3rd Defendant filed on22nd July 2019. It was his contention that the 3rd Defendant/Respondent has no claim to the suit property as he is neither a shareholder in the 4th Defendant/ Respondent nor is he an administrator of the Estate of the late James Kanyotu. He averred that the Plaintiff/ Applicant got a clean title free from any encumbrances and/or inhibitions. He alleged that the 3rd Defendant/Respondent is, for the very first time, seeking to challenge a sale agreement that was validly executed over seven years ago.He also contended that the suit land was, owned by the 4th Defendant/Respondent which is a legal, separate and distinct entity from its promoters, Directors, members, shareholders, creditors, guarantors, suppliers, and financiers.

Further that the Court Orders alluded to by the 3rd Defendant/Respondent , do not touch on sale of the suit land, but rather on the transfer of any share held by the estate of the late James Kanyotuin the 4th Defendant, which is the Company that owned the suit land by the persons so named in the order and therefore there was no Court Orderprohibiting the sale of the suit land to Trendsetters Investment Limitedby the Directors of the 4th Defendant and to prevent the beneficiaries of the Estate of the late James Kanyotu, from disposing the deceased’s’ personal properties and /or share in various Companies in which he is a shareholder without the consent of the court.

He further averred that on the 18th July 2012, and 25th July 2012, all inhibitions that had been registered on the title to the suit title were cancelled by a Court order issued by Justice Mutava, leaving the suit title free from any encumbrances at the time the suit land was transferred to Trendsetter Investment Limited. Further that inHCCC No. 461 of 2012, in its ruling dated 16th May 2017, the Court refused to grant the Applicants (1st and 2nd Defendant herein) the orders sought as it lacked jurisdiction to hear and determine the matter and thus downed its tools meaning that the cancellation orders issued on the 18th day of July 2012 and 25th day of July 2012 are still in effect.. He further averred that the 1st -3rd Defendants herein being either the Administratrix and/ or the beneficiaries of the said Estate don’t have any legal right/locus standi to bring a claim over the suit land, the only remedy available to the administratrix of the said estate is to lodge a claim over the shareholding held by the estate of the late James Kanyotu with the directors of the 4th Defendant herein.

The 3rd Defendant Willy Kihara Njoki Kanyotu in his Further Affidavit sworn on 30th September 2019, contended that the issue is that the suit property was never sold to the Plaintiff/ Applicant nor to Trendsetters Investment Limited. He further averred that it is clear from the agreement allegedly between Trendsetters Limited and Kangaita Coffee Estate, that the former was only buying a portion of the suit property.

He further alleged that the suit property belongs to the 4th Defendant and thus the 1st Defendant had no capacity or authority to sell it and there would be no way the Plaintiff/ Applicant would have gotten a clean title from Trendsetters Investments Limited. He denied that the suit property was ever sold and that although the Interested Party allege to be the owner of the suit property, the same has never been transferred to them. It was his contention that the Interested Party has not provided any proof of payment and cannot as it did not pay the amount. He urged the Court to allow the Application dated 15th July 2019, and dismiss the Plaintiff’s/Applicant’s Application dated 1st July 2019.

The 3rd Application is the Notice of Motion Application dated 20th January 2020by the Plaintiff/ Applicant seeking for orders that;

1. THAT this Honourable Court be pleased to forthwith strike out the 1st and 2nd Defendants Counter claim dated 15th July 2019 as it is statutorily time barred by virtue of the provision of the Limitations of Actions Act.

2. THAT pursuant to the above the Verifying Affidavit attached to the Counter claim therein be struck out.

3. THAT as a result the 1st and 2nd Defendants Counter Claim as against the Plaintiff be dismissed in its entirety.

4. THAT consequently, the order issued on 22nd August 2019 by this Honourable Court maintaining the status quo be set aside.

5. THAT the Cost of the Counter claim and of the Application be provided for.

The Application is premised on the grounds that the sale of the suit property was validly and legally concluded by way of sale agreement on 19th April 2012, and subsequently the legal title to the suit property was validly transferred to Trendsetters Investments Limited, who then sold the same to the Plaintiff. That since then, the 1st and 2nd Defendants have never challenged the legality or validity of the said agreement through litigation in any Court. That Section 4 (1) (a) of the Limitations of Actions Act prohibits bringing of any action founded in Contract after the end of 6 years. Further that the 1st and 2nd Defendants are for the first time in nearly a decade challenging the Sale Agreement that was concluded in2012, vide their Counter Claim dated 16th July 2019.

Further that the 2nd Defendant confirmed in a sworn Affidavit dated 11th June 2018, filed in HCCC 461 of 2012, that she is a Director of Kangaita Coffee Estates Limited, and that she signed the sale agreement dated 19th April 2012, that the suit property was sold to Trendsetters Investments Limited, by the 4th Defendant, that she and her son John Kanyotu,are the Directors who executed the Sale Agreement , that the sale of the suit property was duly sanctioned by the Board of Directorsand that she withdrew any claims that she had against the suit property by withdrawing her Application dated 22nd September 2016.

It was further contended that the 2nd Defendant/Respondent has in an agreement dated30th May 2018, confirmed that she received Kshs. 65,160,804/= as her share of proceeds from the sale and in consideration of Kshs. 30,000,000/=she would withdraw all pending litigations. Further that the 3rd Defendant accepted Ksh. 39,000,0000/=in final settlement of any claim. Further that the Defendants having chosen to deliberately sleep on their rights, should not be aided by the Court as such an inordinate delay defeats the cardinal principle of equity. That the Counter Claim having been filed out of time amounts to an overt waste of judicial time as the Counter claim is hinged on the sale Agreement. Further that since the Defendants have no legal claim as against the Plaintiff over the suit property, the order issued on 22nd August 2019, maintaining the status quo is negatively affecting the constitutionality guaranteed to third parties to lawful and quiet enjoyment of the sub plots ensuing from the suit land.

In his supporting Affidavit sworn on 20th January 2020, Abdul Dawood Hassan reiterated the contents of the grounds in support of the Application and averred that the 1st and 2nd Defendants/ Respondents have erroneously filed a Counter Claim against the Plaintiff/ Applicant. He averred that the actions of the Defendants/Respondents amount to perjury as they confirm through various affidavits that they lack any legal claim against the suit property, while challenging the validity of the Sale Agreement. It was his contention that taking into account the gross value of the suit property, it is inconceivable that any persons claiming Illegality on a sale agreement concluded in 2012, would sit on their rights for an excessive period. He further averred that the Defendants have been trying to acquire the suit property through extra judicial means by threatening the subplots owners with eviction notices and warning the public with dealing with the same.

In opposing the Application, the 2nd Defendant/ Respondent swore a Replying Affidavit on 12th June 2020, averred that the Court has exercised is jurisdiction over the matter founded in Section 7 of the Limitations of Actions Act. It was her contention that they are within the stipulated time to file a claim against the Plaintiff/ Applicant for recovery of land belonging to Kangaita Coffee Estate Limited,whose alter ego is the late James Kanyotu. She averred that it is in the best interest that the suit is preserved pending the hearing and determination of the suit. She further averred that there are developments still ongoing and the said action is in blatant disregard of the orders issued by the Court.

The Application is further opposed and the 3rd Defendant/ Respondent swore a Replying Affidavit on 11th May 2020, and averred that the Plaintiff/ Applicant is trying to divert the attention of the Court from dealing with the main suit. He contended that the Plaintiff/ Applicant continues to be in contempt of the status quo orders issued and therefore the Application is an abuse of the Court process. He denied that the Application is based on the alleged sale agreement dated 19th April 2012, and averred that the Counter Claim is an action for recovery of land and hence not affected by section 4 of the Limitation of Actions Act. It was his contention that the Plaintiff/ Applicant has already admitted that HCCC No. 461 of 2012,challenged the transfer of the suit property and therefore the allegations that the Defendants/ Respondents were sleeping on their rights are untrue. He further relied don his Replying Affidavit sworn on 22nd July 2019.

The Plaintiff/ Applicant through Abdul Dawood Hassan swore a Further Affidavit sworn on 10th August 2020, and averred that the Counter Claim is based on the alleged illegality of the Sale Agreement dated 19th April 2012 that led to the transfer of the suit property. It was his further contention that it is only the 4th Defendant/ Respondent who can file an action on the legality of the sale or an action to recover the suit property as the 1st and 2nd Defendants(Plaintiffs in the Counter Claim) lack locus standi to bring any action with regard to the suit property . It was his contention that the Estate of the late James Kanyotu,was only a shareholder in the 4th Defendant/ Respondent and therefore the suit property cannot have been estate property. He further contended that the Counter claim as filed is solely hinged on the claim that the sale agreement that led to the sale and transfer of the suit property was a forgery and thus not properly executed by the Directors of the 4th Defendant/ Respondent. He urged the Court to allow the Application.

The Court directed that the three applications be canvassed together thus this ruling. The three Applications were canvassed by way of written submissions to which the Court has now carefully read and considered and renders itself as follows;-

It is not in doubt that the suit property initially belonged to Kangaita Coffee Estates, the 4th Defendant herein. It is also not in doubt that by an alleged Sale Agreement dated 19th April 2012, the said 4th Defendant allegedly sold the suit property to Trendsetters Investments Limited who in turn sold the suit property to the Plaintiff. It is further not in doubt that the suit property is currently registered in the name of the Plaintiff/Applicant and that the said suit property has since been sold to the Interested Party. Further the suit property has been subdivided into various subplots and that some of the subplots have since been sold to other third parties who have either commenced construction or have fully constructed on the said sub plots.

Though the Plaintiff / Applicant has averred that it legally and validly bought the suit property and that it has since sold the same to the Interested Party with an understanding that the purchase price would be collected from the subsequent purchase from the subplots, it is the Defendants contention that the suit property was not validly sold as the parties who sold the said suit property did not have authority to sell the same. That the said suit property formed part of the Estate of the Late James Kanyotu, and there was no Court consent granting the same. It is not in doubt that the 2nd and 3rd Defendants received some monies allegedly as part of purchase price for the sale of the suit property and that they had sworn affidavits and agreements claiming that they had no interest over the suit property. The Court further notes that there are various issues that are contradictory and contentious. Further the Court notes that the said contentious issues cannot be decided upon based on affidavit evidence. The said issues will have to be determined upon production of evidence during the main hearing.

The Plaintiff and the 1st and 2nd Defendants have filed two separate Applications seeking for temporary injunction orders. Further the Plaintiff has also filed an Application seeking to strike out the Counter Claim by the 1st and 2nd Defendants, based on the fact that they did not have locus standi to bring the same and further that since the 1st and 2nd Defendants are seeking to challenge the legality of a contract of sale that was entered into in the year 2012, then the same is barred by Section 4 (1) (a) of the Limitation of Actions. The court finds the issues for determination are as follows;

1. Whether the Application dated 20th January 2020 is merited.

2. Whether the Application dated 1st July 2019 is merited.

3. Whether the Application dated 15th July 2019 is merited.

1. Whether the Application dated 20th January 2020 is merited

The Plaintiff/ Applicant in its Application has averred that the Court Claim is time barred and has therefore urged the Court to strike it out and dismiss the same. Further the Plaintiff/ Applicant had also sought for the verifying Affidavit to be struck out. In its Further Affidavit and submissions, the Plaintiff/ Applicant also called into question the capacity of the 1st and 2nd Defendants to bring the suit. It is the 3rd Defendant’s/Respondent’s contention that the said Counter claim is not on the illegality of the contract and that the same can only be limited by Section 7of the Limitations of Actions Act,as the said claim is for the recovery of the land. The 2nd Defendant/Respondent also filed a Replying Affidavit in opposition to the Application and contended that they are well within their stipulated time to file the claim against the Plaintiff for recovery of the land belonging to Kangaita Coffee Estate Limited.

Whether or not what is being challenged is the illegality of the Contract or the recovery of the suit property, the locus standi of the 1st and 2nd Defendants to sue has been called to question . The Court must first determine whether the 1st and 2nd Defendants/Respondents have the requisite locus to bring the Counter claim. This is so because the capacity of the parties to bring the Counter claim goes to the jurisdiction of the Court to deal with the matter. The Court notes that the said issue of jurisdiction was raised in the Plaintiff’s/ Applicant’s further Affidavit and submissions and given that an issue of jurisdiction can be raised at any point even on appeal, the Court is obligated to determine the said issue first. See the case of Phoenix of E.A. Assurance Company Limited …Vs.. S. M. Thiga t/a Newspaper Service [2019] eKLR where the Court of Appeal stated that;

“In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullityab initioand any determination made by such court will be amenable to being set asideex debito justitiae.It is for this reason that this Court has to deal with this appeal first as the result directly impacts Civil Appeal No.6 of2018which is related to this one. We shall advert to this issue later. In the meantime, it is important to put this appeal in context.”

It is not in doubt that the 4th Defendant/Respondent herein was the initial owner of the suit property. Further that the 1st and 2nd Defendants/ Respondents are claiming on behalf of the Estate of the Late James Kanyotu, who was the majority shareholder of the said Company. The 4th Defendant/Respondent herein is a Limited Liability Company, capable of suing and being sued on its own. The 1st and 2nd Defendants/ Respondents being Administrators of the Estate of the late James Kanyotu are therefore representing the shareholder in the said Company. In the case of Priscilla Jesang Koech …Vs… Rebecca Koech & 3 Others [2018] eKLR, the Court held that;

“Locus standi is the cornerstone of any case. Before a party files a case, he or she must be certain that they are clothed with the requisite capacity to sue and be sued. In the case ofBV Law society of Kenya vs Commissioner of Lands & Others, Nakuru High Court, Civil Case No. 464 of 2000. It was held that:

If a party has no locus standi, then the said party cannot bring a suit to court. The issue of locus standi goes to the root of any suit and the said issue of locus standi is a point of law which is capable of disposing of a matter.’

It is not in doubt that the 1st and 2nd Defendants/ Respondents being Administrators of the Estate of the Late James Kanyotu are therefore bringing the suit as shareholder of Kangaita Coffee Estate Limited. It is important to note that the said Kangaita Coffee Estate Ltdis a Company that is distinct from its shareholders. The 1st and 2nd Defendants/ Respondents have alleged that they have brought the Counter claim seeking to recover the suit property belonging to Kangaita Coffee Estate Limited, whose alter ego is James Kanyotu However, only the Company has capacity to take action on its own as its separate from its shareholders.See the case ofOmondi …Vs… National Bank of Kenya Limited and Others[2001] EA 177, where the court held:-

“The property of the company is distinct from that of its shareholders and the shareholders have no proprietary rights to the company’s property apart from the shares they own. From that basic consequence of incorporation flows another principle: only the company has capacity to take action to enforce its legal rights.”

Therefore, it is the Court’s considered view that the 1st and 2nd Defendants/ Respondents do not have the requisite locus standi to bring the Counter claim. The Plaintiff/ Applicant had further sought for striking out of the Counter claim and the Verifying Affidavit on the grounds that the same is barred by Section 4(1) (a) the Limitations of Actions Act. However, since the Court has already held that the 1st and 2nd Defendants/Respondents do not have locus standi to bring the suit, then the said issue has already been spent and the Court finds no reason to deal with the same.

From the above analysis, the Court finds and holds that the Notice of Motion Application dated 20th January 2020, is merited and the same is allowed in terms of prayers no. 4, 5 & 6 of the said Application as the 1st and 2nd Defendants lack locus standi to bring the Counter Claim.

2. Whether the Application dated 1st July 2019 is merited

The Plaintiff/ Applicant has sought for various orders amongst them temporary interlocutory Injunctions restraining the Defendants from dealing with the suit property, preventing them from threatening the parties in the suit properties with evictions and from further registering any caveat emptors advertisements or inhibitions.

The Applicant having sought for injunctive orders is only entitled to either grant or denial of the same at this stage. It is not in doubt that there has been contradictory and contentious issues that have been raised by both parties that require proper interrogation during the main trial, by calling of evidence, testing the same through cross examination and arrival of determination of the said contentious issues. However, the suit is still at an interlocutory stage and the Court cannot deal with the merit of the case at this stage. See the case of Airland Tours and Travel Ltd…Vs…National Industrial Credit Bank, Milimani HCCC No.1234 of 2003, where the Court held that:-

“In an Interlocutory application, the Court is not required to make any conclusive or definitive findings of facts or law, most certainly not on the basis of contradictory affidavit evidence or disputed proposition of law.”

In determining whether to grant or not to grant the orders of injunction as sought, the court is guided by the principles set out in the case of Giella …Vs… Cassman Brown Co Ltd ( 1973)EA 358, and which have later been repeated in other judicial decisions. See the case of Kibutiri…Vs…Kenya Shell, Nairobi High Court, Civil Case No.3398 of 1980 (1981) KLR, where the Court held that:-

“The conditions for granting a temporary injunction is East Africa are well known and these are: First, the Applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which might not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience. See also E.A Industries ..Vs...Trufoods (1972) EA 420. ”

It is therefore the duty of the Applicant to establish that it has a prima-facie case with probability of success. A prima-facie case was described in the case of of Mrao Ltd…Vs…First American Bank of Kenya Ltd & Others (2003)KLR, to mean:-

“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”.

Has the Plaintiff/ Applicant herein established a prima facie case? It is not in doubt that the Plaintiff/ Applicant is the registered owner of the suit property that has since been subdivided into subplots. Though the Defendants/ Respondents have refuted this and alleged that the said title was acquired fraudulently, the said contention cannot be settled at this juncture. As already stated above, these are contentious and contradictory statements of facts that cannot be determined at this stage. This Court will have to determine the same at the main hearing. However, as a registered owner, the Plaintiff/Applicant is deemed to be an absoluteand indefeasible proprietor whose proprietorship can only be challenged as provided by the law. See Section 26(1)(a)&(b) of the Land Registration Act.

Prima faciely, being the registered owner of the suit property, the Plaintiff/Applicant has therefore established that it has an interest over the suit property. The Plaintiff/Applicant being theprima facieowner of the suit property and given that it has further alleged that the Defendants/ Respondents are interfering with their use and enjoyment over the said suit property, then it is not in doubt that its rights over the suit property (being the right of being in quiet possession) have allegedly been infringed upon by the Defendants/ Respondents by the variousadvertsandCaveat Emptorsthat have been placed in theNewspapers.Consequently, the court finds and holds that the Plaintiff/ Applicant has established aprima faciecase with probability of success as its rights can only be curtailed in accordance with the law.

On whether the Plaintiff/ Applicant will suffer irreparable loss which cannot be compensated by an award of damages;-‘Irreparable loss’ was described in the case of Paul Gitonga Wanjau…Vs…Gathuthi Tea Factory Co. Ltd & 2 Others, Nyeri HCC No.28 of 2015, as simply injury or harm that cannot be compensated by damages and would be continuous.

It is not in doubt that the Plaintiff/ Applicant is in possession of the suit property. If for any reason the Plaintiff/ Applicant is put out of possession and taking into account that there have been various developments on the suit property and after the main hearing the Plaintiff/ Applicant becomes the successful litigant, this court finds and holds that the Plaintiff/Applicant will suffer irreparable harm that cannot be compensated by way of damages. It is trite that a crystalized right which is violated cannot be equated to compensation by damages. See the Case of Niaz Mohammed Janmohammed…Vs…Commissioner for Lands & 4 Others (1996) eKLR, where the Court held that:-

“It is no answer to the prayer sought, that the Applicant may be compensated in damages. No amount of money can compensate the infringement of such right or atone for transgression against the law, if this turns out to have been the case. These considerations alone would entitle the Applicant to the grant of the orders sought.”

Equally in this case, the Court finds that if the Plaintiff/Applicant’s rights are infringed, and no amount of money can compensate such infringement. For the above reasons, the Court finds that the Plaintiff/Applicant has established that it is likely to sufferirreparable lossand/or injury which cannot be adequately compensated by an award of damages.

On the third limbwherein if the Court is in doubt, then it ought to determine the matter on the balance of convenience, the Court finds that the balance of convenience always tilts in favour of maintaining the status quo. It is not in doubt that this matter raises serious conflicts of facts. Further it is not in doubt that a temporary injunction is meant to preserve and protect the suit property. See the case ofExclusive Estates Ltd…Vs…. Kenya Posts & Telecommunications Corporation & Another, Civil Appeal No.62 of 2004 where the court held that:-

“A temporary injunction is issued in a suit to preserve the property in dispute in the suit of the rights of parties under determination in a suit pending the disposal of the suit, to preserve the subject matter’’

Further in the case of Virginia Edith Wambui…Vs....Joash Ochieng Ougo, Civil Appeal No.3 of 1987 (1987) eKLR, 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 court should maintain the status quo until the dispute has been decided on a trial.”

Further in the casePaul Gitonga Wanjau …Vs… Gathuthi TeaFactory Company Ltd & 2 others (2016) eKLR, the Court dealing with the issue on balance of convenience expressed itself thus:-

“Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain thestatus quoin determining where the balance on convenience lies.”

In this instant matter, the Court finds and holds that the status quo ought to be maintained and the status quo herein is that which existed before the wrongful act. The wrongful act herein is the interference of the suit property by the Defendants/Respondents.

Having now carefully considered the available evidence, the Court finds and holds that the Notice of Motion Application dated 1st July 2019,as brought by the Plaintiff/ Applicant is merited and the same is allowed entirely with costs.

4. Whether the Notice of Motion Application dated 15th July 2019 is merited.

The 1st and 2nd Defendants/ Applicants in this Application have sought for various orders . Though in its submissions the Defendants/ Applicants submitted that they had sought for a temporary injunction, from their Application the Defendants/ Applicants have indeed sought for a permanent injunction. It is trite that parties are bound by their pleadings. In this instance, the Defendants/ Respondents having sought for permanent injunction, they are therefore bound by their pleadings.

A permanent injunction cannot be granted at an interlocutory stage. However, it can only be granted upon production of evidence and after the evaluation of the merit of the said evidence. See the case ofKenya Power & Lighting Co. Limited …Vs… Sheriff Molana Habib [2018] eKLRthe Court held that;

‘A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected.

A permanent injunction is different from a temporary/ interim injunction since a temporary injunction is only meant to be in force for a specified time or until the issuance of further orders from the court. Interim injunctions are normally meant to protect the subject matter of the suit as the court hears the parties.”

Having considered the available evidence herein, this Court holds and finds that the 1st & 2nd Defendants / Applicants are not entitled to the prayers sought in the Notice of Motion Application dated 15th July 2019.

Further the Defendants/ Applicants have sought for an inhibition. An inhibition order is similar to temporary injunctive orders. See the case ofDorcas Muthoni & 2 others …Vs… Michael Ireri Ngari [2016] eKLRwhere the Court stated that;

“An order of inhibition issued underSection 68 of the Land Registration Actis similar to an order of prohibitory injunction which bars the registered owner of property under dispute from registering any transaction over the said property until further orders or until the suit in which the said property is a subject is disposed off. The Court issuing such an order must be satisfied that the applicant has good grounds to warrant the issuance of such an order because, like an interlocutory injunction, such an order preserves the property in dispute pending trial.’’

The Court must then determine whether the 1st and 2nd Defendants/ Applicants have met the required threshold as set out in the case of Giella …Vs…Cassman Brown (supra). The Defendants/Applicants would then need to prove that they have a prima facie case with a probability of success.

As already held above by the Court, the 1st and 2nd Defendants/ Applicants are Administrators of the Estate of the late James Kanyotu who was a shareholder of Kangaita Coffee Estate Ltd and therefore represent him as a shareholder. It is not in doubt that as a shareholder, the said Estate does not have any proprietary interest over the suit property as the same belongs to the Company and it held all the rights and privileges over the same. For a party to establish a prima facie case, the party must first establish that it has interest over the said property that such right has been infringed or that is likely to be infringed.

In this instant suit, the court finds and holds that the Applicants have not proved that they have any interest over the suit property that is likely to be infringed as they lack capacity to act on behalf of the 4th Defendant as shareholders. For these reasons this Court further finds and holds that the 1st and 2nd Defendants/ Applicants have not established a prima faciecase, with probability of success at the trial.

Having failed to establish a prima facie case, the Court finds and holds that the Applicants are not entitled to the inhibition orders sought herein. For the Court to grant the temporary injunctive orders, a party must be able to satisfy all the three principles as the same are sequential in nature and failing to satisfy one then automatically the other two limbs must fail.See the case of Kenya Commercial Finance & Co. Ltd…Vs… Afraha Education Society (2001) 1EA 86, where the Court held that:-

“The sequence of granting an interlocutory injunction is firstly that an Applicant must show a prima-facie case with probability of success if this discretionary remedy will inure in his favour. Secondly, that such an injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury; and thirdly where the court is in doubt it will decide the application on a balance of convenience. See Giella..vs..Cassman Brown & Co. Ltd 1973 EA pg 360 Letter E. The conditions are sequential so that the second condition can only be addressed if the first one is satisfied and when the court is in doubt then the third condition can be addressed.(emphasis mine).”

This court has analyzed the available evidence and it has come to a conclusion that theNotice of Motion Applicationbrought by the 1st and 2nd Defendants/ Applicants dated15th July 2019,isnotmerited and the said application is dismissed entirely with costs.

Having now carefully considered the available evidence, the written submissions and the cited authorities, the Court finds that the Plaintiff’s/Applicant’s Notice of Motion Application dated 1st July 2019, is merited and the same is allowed in terms of the following orders;

4. That pending the hearing and determination of this suit a temporary injunction do issue restraining the 1st 2nd 3rd and 4th Defendants jointly and severally, whether by themselves, their agents, servants, employees, or anyone authorized by them or acting on their behalf from registering any caveat or inhibition against the title to all that that parcel of land known as L.R 11261/76 or any sub-plots ensuing from its sub-division or any portions thereof.

5. That the officer commanding station, Ruiru police station, do assist in the enforcement of the order issued by this honourable court.

6. That the costs of this application be borne by the Defendants in any event.

Further, the Court finds and holds that the Notice of Motion Applicationdated 20th January 2020, is also merited. On the issue of whether the Counter Claim is time barred by provisions of Section 4 (1) (a) of the Limitations of Actions Act, the Court found and held that the 1st and 2nd Defendants do not have locus standi and therefore there is no reason to deal with the issue of Limitation. For avoidance of doubt the orders that are allowed in relation to the Application dated 20th January 2020,are;

1. THAT as a result, the 1st and 2nd Defendants Counter Claim as against the Plaintiff be and is hereby dismissed in its entirety.

2. The Order issued on 22nd August 2019 by this Court of Maintaining status quo and barring any party from dealing with the suit property be and is hereby set aside.

3. THAT the Costs of the Counter claim and of the Application be borne by the Defendants/Applicants

However, the Court further finds and holds that 1st and 2nd Defendants’/ Applicants’ Notice of Motion Application dated 15th July 2019, is not merited and the same is dismissed entirely with costs.

It is so ordered.

Dated, signed and Delivered at Thika this 24th day of September, 2020

L. GACHERU

JUDGE

24/9/2020

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via Video conference

Mr. Nyiha for the Plaintiff/Applicant

Mrs Akedi for the 1st, 2nd and 4th Defendants/Respondents/Applicants

Mr. Ruiru for the 3rd Defendant/Respondent

Mr. Guandaru Thuita and Waweru for the Interested Party

L. GACHERU

JUDGE

24/9/2020

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