[2024] KEELC 50 (KLR)

Munuve & another v National Land Commission & 2 others (Environment & Land Case E039 of 2021) [2024] KEELC 50 (KLR) (17 January 2024) (Ruling)

Neutral citation: [2024] KEELC 50 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case E039 of 2021

EK Makori, J

January 17, 2024

Between

Rose Nthambi Munuve

1st Plaintiff

Julius Musyoka Nyambali

2nd Plaintiff

and

The National Land Commission

1st Respondent

Shaibu Khamis Mtuwa

2nd Respondent

The Land Registrar Kilifi County

3rd Respondent

Ruling

1. We are yet again back to Chembe/Kibabamshe Adjudication Section. This time we are dealing with the parcel of land comprised of land title Chembe/Kibabamshe/411. The land will seem like many other parcels of land subject to various lawsuits we have before this court has a history of the same fete – double allocation – chequered with a history of wrong interventions and confusion from the various Government Agencies bestowed the duty to administer land allocation and administration in this Country.

2. The initial allocation of this land was to the applicant herein. Title issued- to her and then later when the National Land Commission did its investigations in the now notorious 2017 probe the land was regularized in favour of the 2nd respondent. As can be seen from the suit papers the land has been subdivided into other 24 subdivisions.

3. The applicant now seeks the reversal of the NLC decision in this manner:a.Spent.b.the 2nd defendant, by himself, his servants, and or agents be restrained by an order of injunction from selling, disposing off by any manner, charging, transferring, or in any way interfering with the 24 sub-divisions done on Plot No. Chembe/Kibabamshe/411 Plots Nos.1115,1116,1117,1118,1119,1120,1121,1122,1123,1124,1125,1126,1127,1128,1129,1130,1131,1132,1133,1134,1135,1136,1137, 1138 till this suit is heard and determined.c.The Land Registrar Kilifi County be restrained by an Order of injunction from registering any transfer, sale, charge, or any interest advance to the plaintiff against all the 24 sub-divisions done on Plot No. Chembe /Kibabamshe /411 being Plots Nos.1115,1116,1117,1118,1119,1120,1121,1122,1123,1124,1125,1126,1127,1128,1129,1130,1131,1132,1133,1134,1135,1136,1137, 1138 till this suit is heard and determined.d.Prayers 2 and 3 be granted on an interim basis.e.the costs of this application be provided for.

4. The application is supported by the affidavit of the plaintiff/applicant Rose Nthambi Munuve who alleged that she is the registered proprietor of all that parcel of land known as Chembe/Kibabamshe/411. As proof of ownership, she has annexed in support of her application, a list of documents consisting of the following, a Certificate of title dated 1978, a letter of Allotment containing a Draft Valuation Bill, Adjudication Fees Report. She further averred that at one time she had charged the property with K.C.B., obtained a loan, and repaid it as can be seen from the encumbrance Section of the title. She avowed that in 2017 she was summoned for a public hearing by the NLC on the ownership of the land. She produced the ownership documents before the NLC probe however to her surprise vide Gazette Notice No. 6862 the NLC granted the 2nd defendant Chrispus Singo the land.

5. On the other hand, the respondent, Shaib Hamisi Mtuwa opposed the application and contended through a replying affidavit dated 29th June 2023 that he has been the registered proprietor of Chembe/Kibabamshe/411 since 10th April 2000. He has been in peaceful occupation and ownership of the same without interference from any person. He further moved to re-establish the boundaries on 13th August 2009. In December 2006, he applied to subdivide Plot No. Chembe/Kibabamshe/411 which was approved and he moved to subdivide the property into 24 plots with distinct subtitles.

6. The 1st defendant gave a notice that it shall investigate and enquire into the land acquisitions of the Chembe/Kibabamshe Settlement Scheme. This was sometime in July 2021. The 2nd defendant was shocked to learn that the plaintiff was laying claim on his property during the hearing. However, after the inquiry, the 1st defendant confirmed that the 2nd defendant was the genuine owner of Plot No. Chembe/Kibabamshe/411. He asserted that the applicant has not demonstrated how she got her title and on which register was her title noted because none existed in the Kilifi County Land Register.

7. Parties canvassed the application through written submissions.

8. The applicant submitted that the threshold for the grant of an injunction as enunciated in the celebrated case of Giella v Cassman Brown [1973] E. A 358, has been achieved. The Court referred to the provision of Sections 24 and 25 of the Land Registration Act which provides:(a)The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and(b)the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities, or incidents of the lease. Rights of a proprietor.25. (1)The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—(a)to the leases, charges, and other encumbrances and to the conditions and restrictions, if any, shown in the register; and(b)to such liabilities, rights, and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register(2)Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.

9. Given the above, the applicant stated that it was clear, that a prima facie case had been established with probabilities of success with a demonstration that if the 2nd defendant is not restrained with an order of injunction she will suffer irreparable loss since the 2nd defendant had sub-divided the land intending to dispose of it to unsuspecting third parties. The balance of convenience tilted in favour of the applicant and the Court was urged to grant the orders as prayed.

10. On the contrary the respondent submitted that he has all along been in occupation of the land since 2000. An embargo had been placed on the parcels of land within the Chembe/Kibabamshe Adjudication Section. He was desirous of subdividing the land since 2015. It was allowed. When the NLC did its investigations in 2017 the land was regularized in his favour.

11. The respondent further submitted that it would be contra Article 40 of the Constitution to deprive him of the land and yet he has title to it. Hence the application for injunction ought to be dismissed with costs.

12. The respondent has cited several authorities to support the view that an injunction will not be germane to grant in this case (see Giella v Cassman Brown [1973] E. A 358, Mrao Ltd v First Assurance Bank of Kenya, Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR and Robert Mugo Wa Karanja v Ecobank (Kenya) Ltd & Anor. [2019] eKLR.

13. The respondent averred that to impeach title, one has to plead fraud, illegality, and corrupt means in obtaining it. The provisions of Section 26 of the Land Registration Act were cited as being protective of a title as stated in the case of Elijah Makeri Nyangwara v Stephen Mungai Njuguna and Anor. [2013] eKLR, and when faced with two titles as stated in the case of Teresiah Wangari Mbugua v Jane Njeri Nduati & Anor. [2020] eKLR, the Court has to undertake an investigation unto the root of the titles and find which is the ‘real’ title.

14. The issue for the determination is whether at this point it will be appropriate to issue an interim injunction pending the hearing of the main suit.

15. I have considered the materials and submissions placed before me the threshold to achieve before the grant of an injunction is as held in the Giella Case:“The applicant should satisfy the Court that he has a prima facie case with a probability of success. Secondly, he stands to suffer irreparable loss or injury which cannot be compensated by damages and thirdly, if the Court is in doubt, it should decide on a balance of convenience.”

16. The first issue to determine then is whether the applicant has proved a prima facie case with the probability of success as held in Mrao v First American Bank of Kenya & 2 others [2003] KLR 125 as follows:“A prima facie case in a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has been infringed by the opposite party as to call for an explanation in rebuttal from the latter.”

17. The principles stated in the Giella case are to be addressed sequentially as held in Kenya Commercial Finance Company Ltd v Afraha Education Society [2001] 1 EA 86 as cited in Karen Bypass Estate Ltd v Print Avenue and Company Ltd [2014] eKLR:“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”.

18. I have two titles flaunted by the parties herein. Whereas the 1st respondent NLC found for the 2nd respondent in its probe, and ‘regularized’ the same in his favour, one of the titles needed to be annulled. A probe has to be undertaken by this Court to go to the root of the titles and discover which is the ‘real’ one. It’s akin to subjecting a currency note to the ultraviolet counterfeit detector to flash out a fake one in circulation in the market. See the case of Teresia Wangari Mbugua v Jane Njeri Nduati & Anor. [2020] eKLR:“In this regard, the plaintiff averred that the registration of the suit property in favour of the 1st Defendant was fraudulently done and the same ought to be impeached. When a person’s ownership to a property is called into question, it is trite that the said proprietor has to show the root of his ownership. See the case of Hubert L. Martin & 2 Others …Vs… Margaret J. Kamar & 5 Others [2016] eKLR, where the Court held that;‘A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.’In the case of Munyu Maina. Vs.Hiram Gathiha Maina, Civil Appeal No.239 of 2009, the Appeal Court held that:-“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to 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.”

19. I have considered the warring submissions and the materials placed before me the orders that then commend for issuance are status quo orders pending the hearing and determination of this suit. Why I say so is because we have two titles out there in the market issued by the same Land Registry we will need to go to the root of the title journey and find out who has the ‘real’ title.

20. The status quo orders will entail:a.The respondent will remain in occupation of the suit property.b.However, the Registrar of Land Kilifi County be and is hereby restrained by an Order of injunction from registering any transfer, sale, charge, or any interest adverse to the plaintiff/applicant against all the 24 sub-divisions done on Plot Number Chembe/Kibabamshe 411, Plots Nos 1115, 1116, 1117, 1118,1119,1120,1121,1122,1123,1124,1125,1126,1127,1128,1129,1130,1131,1132,1133,1134,1135,1136,1137,1138 till this suit is heard and determined.c.Costs in the cause.

DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY ON THIS 17TH DAY OF JANUARY 2024. E. K. MAKORIJUDGEIn the Presence of:Mr. Kenzi for the ApplicantMs. Oloo for the 2nd Respondent.Mr. Munga H/B for Mr.Ojwang for the 3rd RespondentCourt Clerk: Happy