[2015] KEHC 1520 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

MILIMANI LAW COURTS

ELC NO. 998 OF 2014

MBUGUA KARIUKI......................................................................................PLAINTIFF

VERSUS

AGNES WAKARITI MAGONDU..........................................................1ST DEFENDANT

COMMISSIONER OF LANDS..............................................................2ND DEFENDANT

CHIEF LAND REGISTRAR..................................................................3RD DEFENDANT

KAMITI FARMERS COMPANY LTD...................................................4TH DEFENDANT

SIMON NJUNGUNA NJOROGE..........................................................5TH DEFENDANT

MARGARET NJOKI NJUGUNA..........................................................6TH DEFENDANT

IBRAHIM KAMAU NJENGA...............................................................7TH DEFENDANT

PATRICIA WANJIKU KIHURA...........................................................8TH DEFENDANT

WANJIKU KIARIE..............................................................................9TH DEFENDANT

PETER MUNENE NDENGWA..........................................................10TH DEFENDANT

RULING

The application for determination is the one dated 28th July 2014 filed by the Plaintiff for an order of injunction to restrain the 1st, 2nd and 3rd Defendants from selling, transferring, charging, interfering, or otherwise dealing with the suit property known as L.R. No. Nairobi Block 117/517, pending the hearing and determination of the suit. The application is premised on the grounds outlined thereunder and supported by an affidavit sworn by the Plaintiff.

The Plaintiff’s case is that by a resolution of the Board of Directors dated 7th September 2001, the 4th Defendant authorized the sale of company plots to its shareholders and thereby confirmed the availability of several plots including the suit property. The 4th Defendant also resolved to process title documents of the said plots upon transfer to purchasers. Following the resolution, he entered into a sale agreement with the 4th Defendant for the purchase of the suit property at a consideration of Kshs. 250,000/-and immediately took possession. The Plaintiff referred to annexures “MK4” & “MK5” being correspondence over the suit property between the 2nd and 4th Defendants deposing that he has been processing title to the property and in that regard corresponding with the 2nd and 3rd Defendants. The Plaintiff deposes that he is the legal owner of the suit property by virtue of the Transfer of Lease dated 29th September 2001, Sub-division Scheme Approval dated 1st October 2002 and the letter dated 1st November 2002, by the 4th Defendant instructing the Commissioner of Lands to issue a lease in his favour.

However, that the 1st Defendant is claiming title over the suit property allegedly having purchased it from the 6th, 7th, 8th, 9th, and 10th Defendants on 22nd November 2012. Subsequently on 29th January 2013, the 2nd and 3rd Defendants issued the Sub-division Scheme Approval of the suit property to the 1st Defendant and thereafter the 5th and 10th Defendants holding themselves as officials of the 4th Defendants instructed the 2nd Defendant to issue a letter of allotment to the 1st Defendant. It is the Plaintiff’s deposition that as at the date of the alleged transaction between the 1st and 6th – 10th Defendants, he was the bona fide owner of the suit property and it was therefore not available for alienation by any other party. Consequently, that the 1st Defendant fraudulently obtained an illegal title to the property as the said Defendants had no interest on the property, the same having purchased by him in 2001. The Plaintiff urged the court to allow the application deposing that he stood to suffer irreparably in the event that the orders sought are not granted as the property is likely to be wasted away, damaged and/or alienated by the Defendants.

The 1st Defendant swore a Replying Affidavit on 19th September 2014, wherein she deposed that she is the bona-fide owner of the suit property through an agreement of sale dated 22nd November 2012, for a consideration of Kshs. 1,550,000/- and upon payment of the purchase price the suit property was transferred to her. It was her deposition that the Plaintiff had not exhibited any title documents to prove ownership and that his intention was to defeat her title by presenting forged documents detailing an alleged existence of a sale agreement between himself and the 4th Defendant.

Micheal Chege Mwangi, the vice chairperson of the 4th Defendant swore a Replying Affidavit on 30th October 2014, wherein he deposed that the Plaintiff is the legal owner of the suit property after he purchased it from the 4th Defendant which was transferred to him on 29th September 2001. It was his deposition that on 4th January 2005, the 5th Defendant acting as Chairperson, illegally and fraudulently allocated various commercial plots to various persons and the suit property in particular allocated to a group of 12 people including the 5th – 10th Defendants. Thus, that the transfer from the Plaintiff to the 5th – 10th Defendants was fraudulently done without the authority and consent of the 4th Defendant and they therefore could not pass a good title to the 1st Defendant.

The 2nd and 3rd Defendants and the 5th – 10th Defendants did not file a response to the Plaintiff’s application though duly served.

The application was canvassed by way of written submissions. On behalf of the Plaintiff,it was submitted that there was nothing to exhibit that the 5th – 10th Defendants were proprietors of the suit property before the transfer to the 1st Defendant. Further, that there was no evidence of payment of the purchase price made by the 1st Defendant. On behalf of the 1st Defendant, it was submitted that her title to the suit property cannot be defeated on the basis that there are leadership wrangles within the 4th Defendant. In relying on the case of China Wu Yi Co. Ltd v Ederman Property Ltd & 2 Others HCCC No. 362 of 2012, counsel submitted that the 1st Defendant need not inquire into the indoor management of the 4th Defendant and that the assertion that the transaction leading to her acquiring title is illegal on the basis that the vendors did not act with the authority of the 4th Defendant is null and void. It was also submitted that the Plaintiff had not established the allegation of fraud on the part of the 1st Defendant and in the absence of such evidence, her title to the property deserves protection by the Court by virtue of Section 26 of the Land Registration Act. It was thus submitted that the Plaintiff had failed to meet the threshold for the grant of injunction orders in the absence of proof of ownership of the property and allegation of fraud on the part of the 1st Defendant.

From the narrative hereinabove, it is clear that the 1st Defendant is the title holder of the suit property. She claims to have acquired title thereto through purchase from the 5th – 10th Defendants. The Plaintiff on the other hand claims ownership of the same property averring that the same was transferred to him by the 4th Defendant upon purchase in 2001. The Plaintiff does not have title to the property. He, however, challenges the 1st Defendant’s title alleging that the same was obtained by fraud. Evidently, therefore, the dispute between the parties is the ownership of the suit properties.

Whereas the 1st Defendant has availed a copy of title showing ownership of the property, the same is under challenge by the Plaintiff. The Court of Appeal in the case of Munyu Maina v Hiram Gathiha Maina, Civil Appeal number 239 of 2009 held that:

“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”

Whilst the law is protective of title, Section 26(1) of the Land Registration Act provides instances where title can be challenged, to wit,

On the ground of fraud, or misrepresentation which the person is proved to be a party; or

Where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme.

Whether or not the 1st Defendant obtained title to the suit property illegally or through fraud is an issue that can only be determined at the trial upon further evidence. In the meantime, however, the Court is satisfied that the Plaintiff has established an interest over the disputed property and it would therefore be in the interest of justice that the same be safeguarded pending the determination of the suit.

The upshot is that the Plaintiff’s application dated 28th July 2014 is merited and thus allowed as prayed. Costs of the application shall be in the cause.

It is so ordered.

Dated, Signed and Delivered this 31stday of July,2015

L.GACHERU

JUDGE

In the Presence of:-

None attendance for the Plaintiff/Applicant

None attendance for the 1st Defendant/Respondent

None attendance for the 2nd and 3rd Defendants/Respondents

None attendance for the 4th Defendant/Respondents

None attendance for the 5th – 10th Defendants/Respondents

Nyangweso: Court Clerk

L.GACHERU

JUDGE

Court.

Ruling Read in open Court in the absence of the parties.

L.GACHERU

JUDGE