[2017] KEELC 3361 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC CASE NO.71 OF 2014

PETER MWENDA MBUI........................................................PLAINTIFF

VERSUS

ESTHER NDULU MUTUKU........................................1ST DEFENDANT

TOTAL KENYA CO. LTD.............................................2ND DEFENDANT

AND

MUTUKU NGEI...................................................INTERESTED PARTY

AND

JOHN NDUNGWA KIMEUpracticing asJ. N. KIMEU & CO.

ADVO...............................................INTENDED INTERESTED PARTY

RULING

1. The Plaintiff/Applicant instituted this suit by a Plaint dated 3rd September, 2014 seeking the following reliefs:

a) An injunction restraining the defendants from dealing and/or transacting with the suit property in any manner prejudicial to the plaintiff and the interested party’s rights as captured in the Sale Agreement dated 13th August 2014.

b) A declaration that any transaction between the defendants herein and/or between the defendants and any Third Party touching on suit property is void ab initio.

c) The completion period of 30 days in the sale agreement dated 13th August 2014 between the plaintiff and the interested party be reasonably enlarged.

d) The defendant cautions registered on land Title No. Machakos Town /Block 1/89 be removed and the Land Registrar Machakos County be and is hereby ordered to register the plaintiff and the Interested Party’s transfer documents and issue a title in favour of the plaintiff over Machakos Town /Block 1/89.

e) Costs and interest of the suit.

2. Contemporaneously with the filing of a Plaint, a Notice of Motion dated 3rd September 2014 was filed seeking the following reliefs:-

a) That this application be certified as urgent and be heard Ex parte at the first instance.

b) That pending the hearing and determination of this matter the completion period of 30 days in the Sale Agreement dated 13th August 2014 between the plaintiff and the Interested Party be suspended.

c) That the defendants be temporarily restrained from occupying, taking possession and/or registering any transaction on Land Title No. Machakos Town/Block 1/89 pending the interpartes hearing and determination of this application.

d) That the defendant cautions registered on land Title No. Machakos town/block 1/89 be removed and the Land Registrar Machakos County be and is hereby ordered to register the plaintiff and the interested party’s transfer documents and issue a title in favour of the plaintiff over Machakos town / Block 1/89.

e) That the defendant be restrained from occupying, taking possession and/or registering any transaction on Land Title No. Machakos town/block 1/89 pending the hearing and determination of this suit.

f) That costs be provided for.

3. The Motion is supported by the Affidavit of Peter Mwenda Mbui sworn on 3rd September, 2014. He also swore a Supplementary Affidavit on 18th September, 2014.

4. The 1st Defendant, Esther Ndulu Mutuku swore an Affidavit on 12th September, 2014 to oppose the Application.

5. The 2nd Defendant has sworn a Replying Affidavit through Boniface Abala, its Legal Manager, dated 8th October, 2014 to oppose the Application.

6. The Interested Party, Mutuku Ngei, has also opposed the Application via an Affidavit he swore on 15th September, 2014.

7. The parties agreed to canvass the Notice of Motion by way of submissions which they filed and exchanged.

8. The Plaintiff’s/Applicant’s case is that on 13th August, 2014, the Plaintiff and the Interested Party entered into a sale agreement for sale of the suit property at a price of Kshs.17 million whereof a deposit of Kshs.700,000 was paid.

9. The completion date was to be within thirty (30) days with effect from 14th August, 2014.

10. The spousal consent was handed to the Plaintiff by the vendor together with the relevant clearances and consents to transfer the suit property.

11. The Plaintiff then paid stamp duty and lodged documents for registration.

12. The Plaintiff was later informed that the Defendants had lodged cautions against the suit land.

13. The Plaintiff avers that at the time of entry into the agreement, he had done a search and found that there was no encumbrances on the land and that he is ready to have the sale completed, save for the cautions.

14. The 1st Defendant, Esther Ndulu Mutuku’s case is that they placed a caution against any transaction over the suit land because she and her husband had sold it to the 2nd Defendant on 1st September, 2013. She averred that the spousal consent of 12th August, 2014 is a forgery; that she never signed the same; that on the date of the alleged signature, she was in London; that her husband had been unwell and thus could not make informed decisions and that since 1985, she has been handling all his sensitive issues.

15. The 1st Defendant deponed that her husband/Interested Party could not have been in his sound mind when he entered into the agreement of 13th August, 2014; that her husband and the Interested Party are willing to refund Kshs.700,000 to the Plaintiff and that the suit land should be transferred to the 2nd Defendant to avoid penalties for breach of contract.

16. The 2nd Defendant, Total Kenya Ltd’s case is that there exists a contract between itself and the Interested Party; that the Plaintiff with exercise of due diligence could have known that position and that the consent by the 1st Defendant was obtained through fraud and thus invalidates the sale agreement between the Plaintiff and the Interested Party.

17. The Interested Party’s case is that in 1985, he suffered cerebral vascular stroke thus losing speech and memory and that his wife, the 1st Defendant, had been handling all sensitive issues concerning his affairs. The Interested Party deponed that he did not hand over his wife’s consent to the Plaintiff.

18. The Interested Party averred that there is a letter from the Town Manager of Machakos County Government informing them of revocation of the consent to transfer suit property.

19. According to the Interested Party, he was informed by his wife that there was an earlier agreement to sell the suit property to the 2nd Defendant; that he is ready to refund the Plaintiff the amount paid to him and that the Application should be dismissed.

20. In his Supplementary Affidavit, the Plaintiff deponed that the Interested Party approached him to buy the subject land herein and handed him spousal consent together with completion documents and that he is an innocent buyer without notice.

21. According to the Plaintiff, the alleged sale of the land to the 2nd defendant was to be completed within ninety (90) days from 1st September, 2013 and since it was not completed, it was extinguished.

22. The Plaintiff deponed that in the caution, the 1st Defendant claims beneficial interest in the property but in court papers, she alleges she had not consented to the sale of the land to the 2nd Defendant. The Plaintiff has averred that the cautions are invalid and in bad faith because the search of 12th August, 2014 and 22nd August, 2014 did not show the cautions and that the cautions were backdated to defeat registration of the transfer after stamp duty was paid and documents lodged for registration.

23. In his submissions, the Plaintiff argues that the issue of the Interested Party being unwell and incapable of making decisions and above all, the doctor’s notes of 1st September, 2014, is an afterthought; that the Interested Party is swearing Affidavits, running accounts and utilizing money paid to him and that he has even promised to refund the paid amount.

24. The Plaintiff relies on the case of Meshack Mohogo Wambugu vs Rev. Samuel Kariuki cited in Fine Spinners Ltd & 3 others Vs Bedi Investments Ltd (UR) Civil Appeal No. 72/94 where the court held that for a grant of mandatory injunction at an interlocutory stage, the Applicant must show that there are special circumstances to warrant the same.

25. The Applicant submitted that his case discloses circumstances for orders sought.

26. The 1st Defendant submitted that since she never gave spousal consent as provided by Section 28 of Land Registration Act of 2012, the transaction is null and void and that in any case, the Interested Party’s mental status deprived him capacity to transact.

27. The 1st Defendant submitted that they are willing to refund the deposited amount.

28. The 2nd Defendant submitted that spousal consent allegedly given to bless the agreement between the Plaintiff and the Interested Party is invalid because the spouse was not in the country on the day the consent is alleged to have been signed and thus she could not and did not sign it.

29. The 2nd Defendant submitted that the earlier contract being valid, the subsequent one could not be valid; that the Plaintiff should have exercised due diligence before entering into a subsequent contract to establish if there was a subsisting contract over the suit land and that specific performance cannot lie in the present suit.

30. The 2nd Defendant relied on the case of Peter Wafula & 2 Others Vs Republic (2014) eKLR.

31. The Interested Party submitted that since he did not hand over spousal consent to the Plaintiff, the agreement he entered into with him is invalid. Further, it was submitted that the completion period was long gone and that the court cannot expand the same and that in any case the consent to transfer the land was revoked and therefore the transaction was incapable of completion. Relying onNational Bank of Kenya Vs Pipe Plastic (CK) Ltd (2002)2 EA 507case, the Interested Party submitted that a court of law cannot rewrite a contract between the parties.

32. After going through the Affidavits of the parties and their submissions, I find the following issues emerge:-

a) Whether a case for interim injunction has beenmade?

b) Whether the court can at this stage suspend thecompletion period of 30 days as prayed?

c) Whether the caution registered on the Suit land should be removed and registration and issuance of title to the applicant be undertaken?

d) What is the order as to costs?

33. It has not been denied that the Interested Party entered into an agreement with the Plaintiff for the sale of the suit property whereof Kshs.700,000 was paid and the balance of Kshs. 16,300,000 was to be paid upon completion within 30 days. This was on 13th August 2014. The agreement was witnessed by Alfred Johnson Munyao Mbindyo for vendor and Juma Abdalla Juma for the purchaser. The advocate who acted for the parties is Mr. Kulecho.

34. None of the above witnesses or advocates has sworn an Affidavit to shed light as to the controversy or dispute which arose thereafter. The court hopes that they will be called as witnesses.

35. The Plaintiff averred that he was handed over all completion documents and went ahead to lodge the same for registration to get a title issued in his name. He paid all the relevant rates and rent for clearance to enable the issuance of clearance certificates and consent to transfer the land, which were issued. He even paid the stamp duty.

36. However, just before registration on 13th August 2014, 2nd Defendant lodged a caution followed by another caution by the 1st Defendant on 18th August 2014. These forestalled the registration of documents lodged by the Plaintiff and thus forestalled completion of the transaction.

37. Clause 6 of the agreement dated 13th August 2014 stipulated that completion period was 30 days with effect from 14th August 2014. This was forestalled by the cautions that were lodged by the 1st and 2nd Defendants. The 1st Defendant’s reasons for lodging the caution was that the spousal consent in the sale transaction was a forgery as she did not sign it and that in any event there was a contract to sell the same land to the 2nd Defendant.

38. The 2nd Defendant alleged that it bought the same land way back on 1st September 2013 vide an agreement between the Interested Party and the 1st Defendant dated 1st September 2013. The completion period was ninety (90) days with effect from 1st September 2013 that is by 30th December 2013. To date the title is still in the Interested Party’s name. No evidence of payment, not even of the deposit, has been shown by the 2nd Defendant.

39. The third ground for opposition to the transaction is that the Interested Party lacked capacity to transact because he is of unsound mind.

40. Whereas the health situation of the Interested Party is alleged by the 1st Defendant to have arisen in 1985, there is no record of mental treatment save for the notes of 1st September 2014.

41. The Plaintiff has shown that there was an agreement between him and the Interested Party and all completion documents were handed to him. He even went ahead to lodge documents for registration together with the consent thereof.

42. The obstacle came before the lapse of the completion date which was informed by the cautions lodged by the Defendants. The Plaintiff deponed that he is ready and willing to complete the transaction.

43. The only handles that the Plaintiff has to contend with at trial to succeed for a claim of specific performance is to prove that the spousal consent was valid and not a forgery and/or that it was not a legal requirement; that the Interested Party’s alleged in capacity did not invalidate the agreement with him of 13th August 2014, and finally that the purported revocation of consent is null and void ab initio.

44. The above issues are to be tested during trial to enable the court make a considered determination. On prima facie basis, the court has been persuaded to grant to the Plaintiff injunctive orders.

45. On the limb of irreparable harm, the Applicant has indicated the amount he has paid including the County Government dues, the stamp duty, the advocate fees and the deposit of Kshs.700,000. The Plaintiff had to terminate his fixed deposit and forfeited interest to be in a position to pay the balance of the purchase price. The Plaintiff indicated that he is ready to complete the transaction. He is likely to lose all what he has spent and forfeited if he does not get the land.

46. On the issue of whether the cautions can be removed, transfer be registered and the title be issued to the Plaintiff, I find the prayer to be premature because the entire suit is for specific performance which will be pre-empted by granting the prayer at this stage.

47. For those reasons, the court is inclined to make the following order;

a. Prayer No (e) of the Notice of Motion dated 3rd September 2014 is granted to preserve the suit property until the suit is heard and determined.

b. Costs to be in the cause.

DATED AND DELIVERED AT MACHAKOS THIS 17THDAY OF MARCH, 2017.

OSCAR A. ANGOTE

JUDGE