[2013] KEHC 3702 (KLR)

REPUBLIC OF KENYA

High Court at Machakos

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1. PATRICK MUTUKU SILA

2. MACKENZIE MUTISO SILA ………………...... PLAINTIFFS/APPLICANTS

VERSUS

SAMINICO LIMITED ……………………………... DEFENDANT/RESPONDENT

R U L I N G

The Notice of Motion dated 32/9/2011 is brought under Order 40 Rule (1) (a), (b), 4(2), 8 and Order 51 Rule 1 of the Civil Procedure Rules and all the enabling provisions of the Law.

The application seeks an order of injunction restraining the Defendant Company through its Directors, employees and/or agents from interfering with LR No. Matungulu/Sengani/3470 by way of selling, alienating, constructing, disposing or interfering in any way by changing the ownership of the suit land pending hearing and determination of this suit.

The application is supported by the affidavit of Mackenzie Mutiso Sila the 2nd Plaintiff/Applicant sworn on 23/9/2011.

The background facts according to the said affidavit is that the 1st Plaintiff, Patrick Mutuku Sila was the registered proprietor of land parcel No. Matungulu/Sengani/1311 and was so registered in trust for the family of the late Sila Mutiso, the 2nd Plaintiff’s father. That in the year 2007 family members resolved to dispose of the suitland. The land was subdivided and one of the resultant parcels, that is parcel No. Matungulu/Sengani/3470 measuring twenty (20) acres was sold to the Defendant Company at the price of Kshs.8,000,000/= on 30/8/2007.

The Applicants’ complaint is that the Defendant has breached the terms and conditions of the sale agreement by failing to pay the purchase price although the title to the land has already been transferred to the Defendant Company. The Applicants accuse the Defendant Company of going ahead to subdivide and sell the land to third parties contrary to the terms of the agreement.

In opposition to the application, the Defendant Company through one of its directors, Franklin Musila Makola swore a replying affidavit on 24/10/11. It is averred in the said affidavit that through a sale agreement dated 30/8/07, the Defendant Company purchased a parcel of land measuring 20 acres from one Michael Mutiso Sila (now deceased) and the 1st Plaintiff, Peter Mutuku Sila which land was excised from land parcel No. Matungulu/Sengani/1311 at the purchase price of Kshs.8,000,000/=.

The land parcel No. Matungulu/Sengani/3470 and Matungulu/Sengani/3473 totalling approximately 20 acres excised from land parcel No. Matungulu/Sengani/1311 were transferred to the Defendant Company upon payment of Kshs.1,200,000/= deposit.

The Defendant denies the averments by the Applicant that no part of the purchase price has been paid and has asserted that a total of Kshs.3,000,000/= has been paid so far. According to the Defendant Company it is the 2nd Applicant who has frustrated their bid to pay the balance of the purchase price by chasing away and damaging properties of prospective buyers of the plots that were subdivided from land parcel No. Matungulu/Sengani/1370 which the Defendant Company subdivided the 160 plots measuring 40ft x 100ft. The Defendant Company states that he has already sold thirty of the said plots.

It is contended by the Defendant Company that part of the purchase price payment was made to the beneficiaries of the estate of the late Michael Mutiso Sila and to the 1st Plaintiff/Applicant. That the 2nd Plaintiff/Applicant is not the legal representative of the late Michael Mutiso Sila nor was the 2nd Applicant a party to the sale agreement.

A further affidavit was sworn by Frankline Musila Makola on 20/3/2012. In the said affidavit, it is averred that the 1st Applicant has continued to receive the balance of the purchase price leaving the remaining balance at Kshs.4,100,000/=. It is also contended that the initial purpose of buying the suitland was for selling to third parties, a fact which was in the knowledge of the Applicants. It is further deponed that the 1st Applicant withdrew his claim against the Defendant Company on 19/3/2012 and that the 2nd Plaintiff has no locus standi to claim anything from the Defendant.

The firm of K.N. Nyamweya & Company Advocates appeared for the Plaintiff while the firm of F. Katunga & Company Advocates appeared for the Defendant Company. The application was canvassed by way of written submissions which I have duly considered.

On 15/3/2013, the Plaintiffs withdrew an earlier application dated 25/5/2011.

It is not in dispute that vide a sale agreement dated 30/8/2007 20 acres of land which were to be excised from land parcel No. Matungulu/Sengani/1311was sold to the Defendant Company. The sellers are reflected in the sale agreement as “Michael Mutiso Sila and other family members of the late Sila Nthamba.”

The buyers are reflected as ‘Samico Ltd and Samuel Dominic Muathe’. The registered party was reflected as Peter Mutuku Sila.

The suit herein was instituted by Peter Mutuku Sila as the 1st Plaintiff and Mackenzie Mutiso Sila as the 2nd Plaintiff. Mackenzie Mutiso Sila the 2nd Plaintiff is reflected in the sale agreement as the ‘Mandated Negotiator’. Michael Mutiso Sila who was the seller has since passed away. The 2nd Plaintiff who has deponed that he is a son to the late Michael Mutiso Sila has not produced any letters of grant of representation.

The 1st Plaintiff who is said to have held the title to the property in question in trust for the other family members filed a notice of discontinuance and/or withdrawal of his claim against the Defendant Company on 15/11/12. The 1st Plaintiff and his advocate Mr Nyamweya appeared before Hon. Judge G. Dulu and informed the court that he did not wish to continue with the case. That leaves the 2nd Plaintiff alone.

The 2nd Plaintiff is not a personal representative of his father’s estate. The Title Deed was registered in the 1st Plaintiff’s name. I would agree with the argument by the Defendant Company’s counsel that the 2nd Plaintiff has no locus standi to institute this suit.

From the sale agreement, it is clear that the down payment was to be made once the land was ready for subdivision and the balance to be paid in total once the consent of the Land Control Board to transfer the land was obtained. The buyer upon signing the agreement took possession of the land and was free to start developing the same but was not to transfer the land until the full and final payment was made. The Defendant Company has conceded that they have so far made payments of a total sum of Kshs.4,100,000/=. The full payment has therefore not been made. The issue of further subdivision of the land into small plots for sale was not addressed in the sale agreement. The issue of selling the plots to raise money for the purchase price is also not addressed in the agreement. It is however clear from the exhibited documents that the “sellers” continued receiving the money from the Defendant Company in installments. I say “sellers” in quotes because from the agreement states the seller as “Michael Mutiso Sila and other Machakos family members of the late Sila Nthamba” while the Title Deed was in the name of Peter Mutuku Sila the 1st Plaintiff. The agreement between the parties states that “…any unlikely dispute, we be referred to a mutually agreed umpire”. This clause of the agreement seems to have been ignored by the parties.

How the agreement was going to be implemented when the sellers are reflected in an amorphous form and mentions “Machakos family members” and “Kangundo family members” remains anathema. It’s little wonder that payments made so far have been made to different parties with some disputing the payments.

All in all, with the 1st Plaintiff having withdrawn from the case and the 2nd Plaintiff having no capacity to sue herein, the case against the Defendants remains in limbo. There is no prima facie case established. The evidence on record does not meet the threshold for a grant of injunctive orders. Consequently, the application fails with costs.

…………………………………

B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 7thday of May2013.

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JUDGE