[2018] KEELC 600 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

ELC CASE NO. 15 OF 2018

PAUL PKEMOI KIDE..............................................................PLAINTIFF

VERSUS

PHILIP KIMUTAI KIBOR............................................1ST DEFENDANT

AGRICULTURAL FINANCE CORPORATION.......2ND DEFENDANT

RODSTAR CONSTRUCTION CO. LIMITED..........3RD DEFENDANT

R U L I N G

1. The applicant brought an application dated 8/2/2018 seeking the following orders:-

(a) ….spent

(b) …..spent

(c) That there be an interim injunction restraining the 3rd defendant from alienating, offering for sale, transferring, excising any part of or in any way dealing with the suit property being Kitale LR. No. 6125/10 pending hearing and determination of this application interpartes.

(d) That there be an interim injunction restraining the 3rd defendant from alienating, offering for sale, transferring, excising any part of or in any way dealing with the suit property being Kitale LR No. 6125/10 pending hearing and determination of the suit.

(e) That costs of this application be provided for.

2. The grounds upon which the application is brought are that in the year 2007, the plaintiff entered into a sale agreement with the 1st defendant to acquire 50 acres portion to be excised from Kitale LR. No. 6125/10; that the plaintiff paid the sum of Kshs.7,500,000/= being the agreed purchase price for the property; that the property had been charged as security for the loan; that part of the amount was paid directly to the 2nd defendant as redemption for the loan the 1st defendant had taken; that the 2nd defendant was supposed to discharge the property to facilitate excision but have fraudulently withheld the fact that they advanced a further loanto the 1st defendant and thereafter clandestinely sold the property; that they subsequently transferred the property as Chargee when the 1st defendant defaulted; that it has now emerged that the 2nd defendant transferred the land to the 3rd defendant without excising the portion that the plaintiff had paid for to the 2nd defendant directly; and that his portion is now part of a sub-division being undertaken by the defendants herein yet the plaintiff has been residing and farming on his 50 acres portion of the suit land continuously since 2007.

3. The 1st respondent filed a replying affidavit on 15th March, 2018 and owned up to transferring the suit land to the 3rd respondent following a successful transaction with it. He further avers as a follows: that the funds paid by the plaintiff were then meant to avert the imminent auction of the suit land by the 2nd respondent; that in any event the plaintiff paid only Kshs. 4,500,000/=in instalments instead of the Kshs. 7,500,000/=in disregard of the imminent threat of auction; that out of the paid amount, Kshs. 1,005,000 was rent for the plaintiff’s lease of 150 acres out of the suit land and should not be deemed as purchase price; that the piecemeal payment by the plaintiff was in breach of an agreement entered into by the plaintiff and the 1st defendant and by reason of that breach the 2nd defendant never discharged or released the title to the land to enable the transaction between the plaintiff and the 1st defendant to be completed; that no consent to subdivide the land was applied for; that owing to several noticed by the 2nd defendant which were issued as the plaintiff watched, the 1st respondent was compelled by the circumstances to sell off the land to the 3rd defendant; that the 50 acres earlier intended to be sold the plaintiff were not even demarcated for the foregoing reason; and that the suit for specific performance is misconceived.

4. The 3rd respondent filed a replying affidavit on 9th March, 2018 sworn by its director who deponed as follows: that LR No 6125/10 the subject matter of this suit no longer existed the same having been subdivided into 6 portions and transferred to the 3rd defendant; that the intention of the plaintiff is to perpetuate his occupation, said to be illegal, of 50 acres of the 3rd defendant’s property contrary to Section 22of the Land Control Act and that there is no privity of contract between the plaintiff and the 3rd defendant nor a valid agreement between the 1st defendant and the plaintiff capable of orders of specific performance.

5. The plaintiff filed his submissions on 24/10/2018. I perused the record and I found no submissions filed on behalf of the defendants in respect of the instant application as at the time of the writing of this ruling.

6. Having regard to the response of the 1st defendant, I find that he does not deny that he obtained some kind of aid in staving off imminent auction of the suit premises. It is not yet established to what extent this aid was effective for the purpose. That can only be conclusively determined upon the hearing of the main suit. However it is clear from that response that the agreement between the plaintiff and the 1st respondent was entered into on the 9th February 2007yet between that date and a certain date in the year 2008 the auction never took place. Nevertheless the correspondence attached to the replying affidavit demonstrates that the 2nd defendant kept up the pressure on the 1st defendant to repay the loan balance. I also note that the letter dated 6th November 2006exhibited in the replying affidavit of the 1st defendant as “PKK1A”reads as follows:

“In reference to my previous letter in which I suggested that I had found a buyer the fact is that yes the buyer was identified and he did make a deposit of Kshs. One Million (1,000,000/=) although he has not been forthcoming as promised this is due to the sudden climatic change. The unforeseen rain has disrupted his harvesting plan. I am therefore requesting you to give me up to December 31st to make payment”.

7. Exhibit “PKK1B” in the same affidavit shows that some of the 1st respondent’s assets had been repossessed and sold over the loan balance before 15th June 2006way before the agreement. It is noteworthy that the agreement for purchase of 50 acres from the suit land exhibited by the plaintiff is dated 9/2/2007. That agreement mentions at paragraph 2 that on 5th June 2006 the plaintiff paid the sum of Kshs. 1,000,000/= to the 1st defendant by depositing the said sum of money in the defendant’s account with the 2nd defendant. Only one lumpsum of Ksh 1,000,000/= is admitted by the 1st defendant in paragraph 6of the replying affidavit as having been paid on 5/6/2006. No breakdown has been attributed to the other lumpsums so as to clarify how the allegation that Ksh 1,005,000/= out of the moneys paid by the plaintiff could have been lease money. In my view the allegation by the 1st defendant that some of the funds paid by the plaintiff were lease moneys has not yet been proved yet the amount paid by the plaintiff towards any purpose intended between him and the defendant remains substantial. In my view the issues that may arise in this suit are complex such as to require the parties to proceed to the full hearing of the main suit to enable the final orders defining the parties’ rights to be made at the judgment stage.

8. Further the 3rd defendant has admitted that the plaintiff is in possession of some 50 acres of which the 3rd defendant is now in possession of title.

9. In an appropriate case this court has the power to order nullification of titles. The very fact that the original land has been transferred and subsequently subdivided and new titles issued to a person other than the 1st defendant is no bar to the exercise of that power provided the proper circumstances obtain. Those circumstances can only be established at the hearing of the main suit. It is notable that the entire parcel known as LR 6125/10 was transferred to the 3rd defendant as a single parcel and thereafter subdivided presumably at the 3rd defendant’s instance.

10. The defence of the 3rd defendant emphasizes on the absence of consent to transfer to the plaintiff but this court does not wish to delve into that substantive issue at this stage.

11. It suffices that the plaintiff paid a substantial amount of money pursuant to an admitted written contract for the sale of 50 acres of land and that the plaintiff is in possession of the 50 acres on the ground as admitted by the 3rd defendant and tacitly admitted by the 1st defendant. That agreement is grievously deficient in timelines or compulsion borne upon the plaintiff to accomplish the redemption of the suit property single handedly within a given period. In my view it would not be proper at this stage to turn a blind eye to the plaintiff’s efforts to help the 1st defendant redeem the 1st defendant’s land from the jaws of auction by the 2nd defendant. How this will be treated at the hearing and determination of the main suit can not be foretold now.

12. I need not say more in this application so as not to prejudice the hearing of the main suit. I find that the plaintiff has established a prima facie case and that having been in possession he may suffer damage that may not be compensable by way of damages if the orders sought are not granted.

13. However the application was not amended at any point in time to read the proper land reference numbers that exist at present. The effect of the subdivision of the land is that if the orders were granted as prayed there would be no order capable of being registered against the LR. 6125/10 as it does not exist. Though that is the case, the defendants acknowledge that LR. 6125/10previously existed and the 3rd defendant’s defence and counterclaim has linked it directly to some 6 subdivisions being LR 6125/11, LR 6125/12 LR 6125/13 LR 6125/14 LR 6125/15 and LR 6125/16.

14. The plaintiff entered into an agreement for purchase of the land while it was not yet subdivided. He knew it as a single parcel. It is not yet known whether the subdivisions overlap the land he occupies. It is therefore safe to issue an order that covers all the subdivisions. I therefore grant the application dated 8/2/2018 and order as follows:

(a) That there be an interim injunction restraining the 3rd defendant from alienating, offering for sale, transferring, excising any part of or in any way dealing with the land comprised in LR. Nos 6125/11, LR 6125/12 LR 6125/13 LR 6125/14 LR 6125/15 and LR 6125/16 - Kitale being subdivisions of LR No. 6125/10 Kitale pending hearing and determination of the suit.

(b) The costs of this application shall be in the cause.

Dated, signed and delivered at Kitale on this 15th day of November, 2018.

MWANGI NJOROGE

JUDGE

15/11/2018

Coram

Before - Hon. Mwangi Njoroge Judge

Court Assistant: Picoty

Mr. Kaosa holding brief for Samba for defendant

Mr. Teti for applicants

COURT

Ruling read in open court.

MWANGI NJOROGE

JUDGE

15/11/2018