[2020] KECPT 2 (KLR)

REPUBLIC OF KENY

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.723 OF 2019

MARY NYAMBURA GITHUA.....................................................CLAIMANT

VERSUS

URITHI HOUSING CO-OPERATIVE

SOCIETY LIMITED........................................................1ST RESPONDENT

SAMUEL NGUNDO MAINA......................................2ND RESPONDENT

RULING

What is before us for consideration and determination is the Claimant’s Application dated 20. 8.2019 as amended on 6. 12. 2019. It seeks, in the main, for the following Orders:

1. Spent;

2. Spent;

3. Spent;

4. That a temporary injunction do issue restraining the Respondents whether by themselves, their servants, employees, agents and/or by whomsoever from entering onto, selling alienating, transferring , on the Claimant’s parcel of land known as Plot No. 11 on JUJA/KOMO BLOCK 1/3452 on OLIVE GARDENS PHASE III pending the hearing and determination of the main suit;

5. That a temporary injunction do issue restraining the Respondents whether by themselves, their servants, employees, agents and/or by whomsoever from mortgaging, leasing, renting the Claimant’s parcel of land known as Plot No. 11 on JUJA/KOMO BLOCK 1/3452 on OLIVE GARDENS PHASE III pending the hearing and determination of the main suit; and

6. That the Respondents bear the costs of this Application.

The Application is supported by the grounds on its face and the Affidavit sworn by the Claimant on 20. 11. 2019.

The 1st Respondent has opposed the Application vide the Replying Affidavit sworn bySamuel Ngundo Maina on 24. 6.2020.

Claimant’s Contention

Vide the Instant Application, the Claimant contend that the 1st Respondent and itself executed a Sale Agreement on 27. 9.2016 for the Claimant to purchase all that piece of land known as Olive Gardens Phase III measuring 40x80 plot II. That the said purchase comprised share certificate No. 9825 dated 13. 9.2016. That subsequently, she paid Kshs.1,200,000/= on installments as shown below:

a. Kshs. 500,000 on 23. 9.2016

b. Kshs.100,000 on 27. 9.2010

c. Kshs.100,000 on 25. 10. 2016

d. Kshs. 200,000 on 29. 11. 2010

e. Kshs. 200,000 on 17. 1.2017

f. Kshs. 100,000 on 27. 2.2017

That upon receipt of the said purchase price, the 1st Respondent has refused and/or failed to execute a transfer and other completion documents. That she has information that the Respondents are planning to hold an Annual General Meeting to plan further delay in the issuance of the transfer documents. That the Respondent’s actions will deprive her ownership of the suit property.

Respondent’s Case

Vide the Replying Affidavit sworn by the 1st Respondent’s chairman on 24. 6.2020, the 1st Respondent has opposed the Application based on the following grounds:

Firstly, that the model employed in the sale of the suit property entailed purchase of big chunk of land and inviting members to book plots by paying deposits. That after making payments for the plots, the land would be subdivided into plots which would eventually be transferred to them upon completion of payment.

That the Claimant is yet to complete payment of the purchase price as well as conveyancing fees to enable it transfer the suit property to herself.

That the Claimant took possession of the suit property and is in continuous occupation despite having not paid the full purchase price. That the suit property cannot therefore be transferred to her until she completes payment of the full purchase prices.

That the said plots cannot be transferred to the Claimant until all plots are excised from the bigger chunk and fully sold. That there is no intention to deprive the Claimant her land and that her apprehension is ill advised.

Disposal of the Application

Vide the directions given on 27. 7.2020, the Application was canvassed by way of written submissions. The Claimant filed hers on 24. 8.2020 while the Respondent did so on 15. 9.2020. We will consider the same whilst determining the issues raised by the Application.

Issues for determination

The Instant Application has presented the following issues for determination:

a. Whether the Claimant has laid a proper basis to warrant the granting an Order of temporary injunction;

b. Who should meet the costs of the Application?

Temporary injunction

The court in the case of Giella - vs- Cassman Brown [1973] EA settled the principles, to be considered before an Order of a temporary injunction can be made. They includes:

a. Establishment of a prima facie case with a probability of success;

b. Establishment of the risk of a party suffering irreparable loss if the injunction is not granted; and

c. A determination of the Application on a balance of convenience if the court is in doubt.

A question arises as to whether the instant Application has satisfied the foregoing conditions. The Claimant has urged us to grant a temporary injunction principally to restrain the Respondents or persons acting at their behest from entering into, selling, alienating, transferring her land known as Plot II comprising JUJA/KOMO BLOCK 1/3452. The basis of this prayer is that she bought the said plot way in 2016 and the Respondents have not been keen to transfer it to herself.

On its part, the Respondents have faulted the Claimant for founding the instant Application on the following grounds:

a. That the Claimant has not completed the purchase price for the said plot;

b. That the said plot (plot II) is part of a bigger chunk land which can only be excised and individual titles processed once the plots are fully paid up; and

c. That the Claimant is in possession of the said plot and that there are no plans to dispossess her of it.

What we gather from the averments of the Claimant in the instant Application is that she wants the Respondent to be compelled to transfer Plot No. II to her name. That the 1st Respondent has called or is about to convene an Annual General Meeting whose Agenda exclude the issue of transfer of the plot to herself.

While the Claimant suggest in her prayers in the Application that the said plot and the suit and the suit land is in danger of being alienated and/or disposed of by the Claimant, none of the grounds in support of the Application supports this contention. The prayers and the grounds in support are thus disjointed.

We have also perused the Reliefs sought in the amended plaint dated 27. 2.2020. We note that some of them are substantially similar to the Orders sought in the instant Application. In fact prayer (b) seeks for a refund of the said purchase price. This poses the question as to whether the Claimant has lost interest in the pursuit of the suit property.

The upshot of the foregoing is that we are not satisfied that the current Application has satisfied the principles set out above. The Claimant has not established that there is imminent risk of alienation of her plot.

Conclusion

On the basis of the foregoing, we find that the Claimant’s Application dated 20. 8.19 and amended on 6. 12. 2019 is unmerited and hereby dismiss it with costs in the case.

Ruling signed, dated and delivered virtually this 5thday of November, 2020.

Hon. B. Kimemia Chairperson Signed 5. 11. 2020

Hon. F. Terer Deputy Chairman Signed 5. 11. 2020

Mr. P. Gichuki Member Signed 5. 11. 2020

In the presence of:

Miss Gitau holding brief for Mr. Mwangi for the Respondent

Hon. F. Terer Deputy Chairman Signed 5. 11. 2020