[2021] KEELC 4626 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT EMBU

E.L.C. APPEAL NO. 13 OF 2020

NYAGA NDERI.................................................................................APPELLANT

VERSUS

JAMES NYAGA KINYUA.............................................................RESPONDENT

RULING

INTRODUCTION

1. The application before me for determination is a motion on notice dated 29/9/2020 and filed on 1/10/2020. It is expressed to be brought under Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21), Order 51 Rule 1 of Civil Procedure Rules, 2010, Sections 78 (2) and 76(2) of Land Registration Act No. 3 of 2012 and all other enabling Law. The applicant – James Nyagah Kinyua – is the respondent in the appeal herein while the respondent – Nyaga Nderi – is the appellant. The applicant and the respondent are son and father respectively.

THE NARRATIVE

2. The dispute between the parties relate to land parcel L.R. No. Ngandori/Ngovio/5744 which was created from subdivision of a larger parcel – L.R. No. Ngandori/Ngovio/531. Land parcel No. 5744 is registered in the applicant’s name but the respondent is contesting that registration.

3. Parcel No. 5744 is only one of the portions created from the sub division of the then larger parcel No. 531. The other portions were Ngandori/Ngovio/5745 and Ngandori/Ngovio/5746. According to the respondent, he has many children, the applicant included, and it was a mistake to register the disputed parcel of land in the applicant’s name. He alleges that such registration may occasion loss of ownership to his other children who are entitled to a share of the land.

4. In order to rectify the mistake, the respondent filed a suit in the lower court – CMCC No. 153 of 2018 – which he lost. He was not satisfied with the outcome and that is why he filed the appeal now before the court.

5. But the applicant has a different story. And the story is that his registration as owner of parcel No. 5744 was not a mistake. The respondent is said to have two wives. One, the applicant’s mother, is deceased. Parcel No. 5744 was meant for her house and was registered in his name not only for himself but also in trust for other children connected to his late mother’s house. The other two portions remained for the respondent himself and the house of his living wife. The contestation of the applicant’s ownership of parcel No. 5744 by the respondent is seen as change of mind caused or influenced by the house of his living wife.

6. All this narrative is clear both from the application itself and the replying affidavit dated 7/12/2020 filed by the applicant.

7. The application came with four (4) prayers. Prayer 1 is now spent and only three (3) Prayers – prayers 2, 3 and 4 – are for consideration at this stage. The prayers for consideration are as follows:-

Prayer 2: That an order be issued against the Land Registrar, Embu to lift/remove the restriction lodged over L.R. No. Ngandori/Ngovio/5744.

Prayer 3: That the honourable court be pleased to issue any other orders it deems just and fit to grant.

Prayer 4: That there be no order as to costs.

8. Of the three (3) prayers for consideration, prayer 2, which is about removal of a restriction, is the most crucial.

SUBMISSIONS

9. The application was canvassed by way of written submissions. The applicant’s submissions were filed on 18/1/2021. The applicant submitted, inter alia, that he is the registered owner of the disputed land. The respondent lost in the lower court matter and what he purports to be an appeal is actually not one as it was lodged in the wrong court. He submitted that he is in dire need of money and he wants to use the land to ameliorate his situation. According to the applicant, the alleged appeal filed by the respondent can’t operate as a say of the lower court judgement. He cited Order 42 Rule 6 (1) and (2) of Civil Procedure Rules, 2010, to drive his point home. He faulted the respondent for not making efforts to seek an order of stay. He further said that “there exists no appeal on record, no application for stay was ever sought for and subsequently issued and that nothing backs (sic) the Applicant herein from enjoying the fruits of his judgement in CM ELC 153/2018”

10. The applicant cited several cases one of which – David Macharia Kinyuru Vs District Lands Registrar, ELC Misc. Appl. No. 331 of 2016, Nakuru – shows the court emphasizing that restrictions are temporary and meant only to endure for a particular time or until the occurrence of some event. With this in mind, the applicant submitted that

“there is absolutely no reason as to why the restriction should not be lifted.”

11. The respondent’s submissions were filed on 20/1/2021. He emphasized that it was a mistake for the applicant to be registered as owner of the disputed land. He pointed out that “the applicant now wants to sell the family land trusted to him (sic) and leave his brothers and sisters with very little land.” He further submitted that the applicant, by his own admission, “is a trustee of himself and his brothers and sisters. He has confirmed that he wants to sell this land to sort out his financial problems. He does not mention his own sisters and his brother’s children …”. The respondent ultimately expressed his position thus: “The removal of the restriction will completely defeat the Appeal because the Applicant will sell the land in which by his own admission he holds in trust.”

ANALYSIS AND DECISION

12. I have had a look at the entire court record generally. I have also considered the application, the response made, and the rival submissions. It appears to me clear that the applicant wants to use the disputed land to sort out his financial problems. He has said so himself and he has also said that he holds the land in trust for others. Question is: Where do the others stand in relation to what the applicant intends to do? Ordinarily, a person who holds property in trust for others cannot deal with the property without the consent of the others or without a court order. Yet the applicant seems to think that he can deal with the disputed land as he pleases. The law would not take kindly to his intended course of action. It seems aimed at short changing the others.

13. It is pertinent also to bear in mind the purpose meant to be served by the restriction. In this regard, I understand the restriction’s raison d’etre to be preservation of the disputed land until the pending issues are resolved. The respondent filed a suit in the lower court and lost. But he is not done yet. He has filed an appeal. The applicant would have us believe that there is no appeal but his reason for such a stand seems weak and unhelpful. What the respondent is being faulted for regarding the appeal is not fatal and can easily be rectified. It appears clear to me that there is still need to preserve the disputed land until all the legal processes ahead are exhausted.

14. But there is still another aspect that the applicant seems to overlook. The restriction is not solely about the respondent. It is also about five (5) others who are not part of the appeal and were not also part of the lower court case. I don’t know who the five (5) others are but I know that the removal of the restriction in the manner proposed by the applicant would amount to condemning them unheard. It could well be that the applicant thinks that the court should treat them as the respondent’s children. But the court cannot do so without good reason being proffered in that regard. Besides, even if they are such, the suit as filed does not seem to be a representative suit. I cannot therefore subsume the interest of the five others with those of the respondent. This factor therefore works against removal of the restriction.

15. Finally, it is necessary to be alive to the factors necessary for grant, denial or removal of the various instruments normally placed on land register to prevent dealings that may prejudice some parties. Restriction is one such instrument. In this regard, the court needs to consider whether the suit property is at risk of being disposed of or alienated or transferred to the detriment of a party. It also considers whether the action asked for may render the outcome of the suit nugatory. Finally it has to be considered whether the suit before court is arguable.

16. I have already pointed out that I have looked at the court record. In particular, I have read the lower court judgement and I have seen the memorandum of appeal filed. It is clear to me that in this matter that the disputed land is at risk of being disposed of or at least dealt with in a manner that may completely change its status. It is also clear that the appeal filed may be rendered nugatory if successful. And having read the lower court judgement and the memorandum of appeal on record, my position is that it is not possible to say at this stage that the appeal is one likely to be successful. But I am reasonably certain that it is arguable. And I say this because an arguable suit or appeal does not have to be one that will succeed. What the court needs to consider is whether it founded on reason or whether it is prima facie frivolous or vexatious. My position is that the appeal is not frivolous, vexatious or hopeless.

17. Given what I have said so far, it is clear that the application herein is one for dismissal. And I hereby dismiss it with no order as to costs.

RULING DATED, SIGNEDand DELIVERED in open court at EMBU this27TH DAY ofJANUARY 2021.

In the presence of Njiru Mbogo for the Appellant/respondent and Mogaka for M/s Maina for respondent/applicant.

Court Assistant: Leadys.

A.K. KANIARU

JUDGE

27. 01. 2021