[2018] KEELC 3756 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

THIKA LAW COURTS

ELC CASE NO.575 OF 2017

(FORMERLY MILIMANI ELC CASE NO.1347 OF 2016)

PRICAL ENTERPRISES LIMITED....................PLAINTIFF/APPLICANT

-VERSUS-

MARTHA WANGARI MWAURA..........1ST DEFENDANT/RESPONDENT

MWAURA KAMAU HARUN.................2ND DEFENDANT/RESPONDENT

RULING

Coming up for determination is the Notice of Motion application dated 31st October 2016, brought by the Plaintiff/Applicant under various provisions of law and it seeks for the following orders against the Defendants/Respondents:-

1) Spent.

2) That an order of injunction do issue forthwith restraining the Defendants/Respondents either by themselves or their agents and/or servants from interfering with all that land parcel known as LR.No.Chania/Kanyoni/2407, pending the hearing and determination of this suit.

3) That an order of injunction do issue restraining the Defendants/Respondents from interfering with the Plaintiff’s/Applicant’s quiet enjoyment and possession of LR.No.Chania/Kanyoni/2407, pending the hearing and determination of this suit.

4) That the Land Registrar, Gatundu Lands Registry, be ordered to put a caveat and stop any further dealings with the said land parcel pending the hearing and determination of this suit.

5) That the County Commissioner, Kiambu County and the OCSKamwangi Police Station be ordered to ensure that due performance and compliance with Orders 2,3 and 4 above.

6) That such other and/or further orders be made as this Honourable Court may deem fit and just.

The application is supported by the grounds stated on the face of the application and these grounds are:-

a) The Plaintiff/Applicant entered into a Sale Agreement with the 1st Defendant/Respondent over the entire land parcel known as LR.No.Chania/Kanyoni/2407, on 26th January 2015, upon doing due diligence as per law required.

b) That at the time of the said sale, the said suit property was registered in the names of the 1st Defendant/Respondent and who had an original title deed to the property.

c) The Plaintiff/Applicant paid the whole purchase price and the suit property was transferred in its favour upon attaining the requisite consent from the Kamwangi Land Control Board and subsequent lodging the transfer documents at the Thika Land Registry then.

d) The suit land was successfully transferred in favour of the Plaintiff/Applicant and a title deed duly issued in its favour on the 6th March 2015.

e) The Plaintiff/Applicant has heavily invested in the suit property.

f) That the Plaintiff/Applicant also obtained a copy of the Green card to the suit property and confirmed that the entry to its title deed had been cancelled following an order vide a Ruling in High Court Succession Cause No.180 of 2011- Nairobi.

g) That the Plaintiff/Applicant is now apprehensive that it might incur irreparable loss and damage as the 2nd Defendant/Respondent is now threatening to evict it from the suitproperty.

h) It is the interests of justice, equity and fairness that the orders sought be granted as prayed.

The application is also supported by the Affidavit of Steven Nyota Nyambura,a Director of the Plaintiff/Applicant. He averred that the 1st Defendant/Respondent offered LR.No.Chania/Kanyoni/2407, for sale sometimes in the year 2015 and the Company got interested in the said property. He further averred that they conducted a search in January 2015, and confirmed that the suit property was registered in the name of 1st Defendant/Respondent and they were satisfied that she was the legal owner. He further averred that they entered into an Agreement for Sale and purchase of the said land on 26th January 2015 as per annexture SNN-2. It was his contention that after paying the deposit of Kshs.650,000/= they went to Gathaite Location to confirm status of the suit property and thereafter sought the Land Control Board Consent at Kamwangi Land Control Board and they were issued with the requisite Consent to transfer as is evident from annexture SNN-4. That the requisite transfer forms were executed and lodged for registration at Thika Lands Office on 26th February 2015 as per annexture SNN-7. He alleged that the transfer was successfully lodged and there was no rejection of the documents.

Subsequently, title deed to the suit property was issued in favour of the Plaintiff on 6th March 2015 as per annexture SNN-9. He alleged that they paid the full purchase price and thus obtained title deed in the name of the Plaintiff and thus the Plaintiff became the rightful and legal owner of the suit property. He further alleged that the Plaintiff was not aware of any family disputes as they had confirmed that a Succession Cause had been filed at Gatundu Resident Magistrate’s Court being Succession Cause No.26 of 2007 and the Grant was confirmed and the suit property was bequeathed to the 1st Defendant/Respondent.

However, vide an Order of the Court in High Court Succession Cause No.180 of 2011 (Nairobi), their title deed was cancelled as per SNN-15. He contended that the Defendants/Respondents never served them with any Notice whatsoever regarding the ongoing Succession Cause at the High Court in Nairobi. It was his contention that the 2nd Defendant/Respondent intended to evict them from the suit property wherein they have invested heavily. It was his contention that the Plaintiff/Applicant is a bonafide purchaser for value and the Defendant should not deny them their entitlement to the suit property.

Further, that the interest of justice and fairness would only be served if the orders sought are granted.

The application is contested by 2nd Defendant/Respondent, Mwaura Kamau Harun. The 1st Defendant/Respondent Martha Wangari Mwaura did not file her Replying Affidavit despite having filed a Notice of Appointment of Advocate on 19th July 2017. The said Notice of Appointment had been filed by R. M. Njiraini & Co. Advocates, but no Replying Affidavit was filed.

On his part, the 2nd Defendant/Respondent averred that the suit property herein Chania/Kanyoni/2407, and another Chania/Kanyoni/2413was a matter before theHigh Court Succession Cause No.180 of 2011as perannexture MKH-1. The court delivered aRulingon30th November 2014and cancelled the existing titles and ordered reversion of the two parcels of land back to the name of the deceased,Mwaura Wangonyaas is evident fromannexture MKH-2. However, in complete discard of the High Court Ruling, the 1stDefendant proceeded to offer the suit land for sale to the Plaintiff/Applicant without disclosing the status of the land and the Succession Cause at the High Court. Therefore the process of sale of this land to the Plaintiff/Applicant by the 1stDefendant was shrouded in fraud as at the time of sale, the land was no longer for the 1stDefendant but had been reverted back to the deceased. Further that the Applicant cannot claim to have any valid hold on and possession of the suit property herein. He alleged that the suit property is indeed the property of the deceasedMwaura Wangonya,and Plaintiff/Applicant has no proprietary rights over the same.

He further contended that he was not a party to the sale agreement in issue and he has therefore not breached any terms of the agreement and should not be bound by the orders sought herein. It was his further contention that the Plaintiff/Applicant should not be allowed to enjoy and possess which does not legally belong to them.

This application was canvassed by way of written submissionswhich this Court has carefully read and considered. The Court has also considered the pleadings in general and the annextures thereto. Further the Court has considered the cited authorities and the relevant provisions of law and renders itself as follows;-

There is no doubt that the suit property herein Chania/Kanyoni/2407is now registered in the name ofMwaura Wangonya (deceased),who is allegedly the husband to the 1stDefendant/Respondent and father to the 2ndDefendant/Respondent. There is also no doubt that after the death of the saidMwaura Wangonya, the 1stDefendant/RespondentMartha Wangari Mwaurafiled a Succession Cause at theMagistrate’s Court, GatundubeingSuccession Cause nO.26 of 2007, wherein the two parcels of land belonging to the deceased,Mwaura Wangonyawere transferred to 1stDefendant solely without involving the 2ndDefendant herein. The suit property hereinChania/Kanyoni/2407,was one of the property transferred to the 1stDefendant/Respondent. It is also evident that vide aSuccession Cause No.180 of 2011,filed inNairobi High Court, the 2ndDefendant hereinMwaura Kamau Harunfiled an application for revocation of the Grant issued to the 1stDefendant videSuccession Cause No.26 of 2007. He also sought for revocation of the transfer of the deceased two properties to the 1stDefendant.

Further, it is evident that vide a Ruling delivered in Succession Cause No.180 of 2007 on 30th November 2014, the court revoked the Grant that was confirmed and which grant had transferred the suit property herein, Chania/Kanyoni/2407, to the 1st Defendant. The Court further directed that the two properties do revert to the name of the deceased Mwaura Wangonyaand the 1st and 3rd Defendants were directed to obtain Letters of Administration jointly and seek an amicable mode of distribution of the said estate of the deceased or through canvassing and ventilation of the issues for determination of the court.

From the above Ruling of the court, which has not been appealed against or vacated as no such evidence was availed, it is evident that the suit property is in the name of the deceased and it can only be disposed off after the Succession Cause is finalized. For now the suit property is subject of the Succession Cause No.180 of 2011. Dealing with the said party contrary to the provision of the Succession Act means that there is meddling of the property of the deceased and that is contrary to Section 45(1) of the Succession Act which provides:-

“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property ofa deceased person”.

However, it is evident that even after the Ruling of the court that was delivered on 30th November 2014, the 1st Defendant went ahead and sold the suit property to the Plaintiff/Applicant. The suit having reverted back to the deceased and given that the 1st Defendant/Respondent was not the sole administrator of the estate of the deceased Mwaura Wangonya, then she had no capacity to sell the suit property to the Plaintiff/Applicant herein.

Having purchased the suit property from a person who had no capacity to sell the said land, the Plaintiff/Applicant did not acquire good title and it cannot claim that it is a bonafidepurchaser for value.

The Applicant has now come to court seeking for injunctive orders against the Defendants/Respondents herein. The orders sought herein are equitable reliefs granted at the discretion of the court. However, the said discretion must be exercised judicially. Further the court at this interlocutory stage is not supposed to decide the issues in dispute with a finality. All that the court is supposed to do is to determine whether the Applicant is deserving of the orders of injunction based on the usual criteria set out in the case of Giella...Vs...Cassman Brown & Co. Ltd 1973 E.A 358. These criterias are:-

a) The Applicant must establish that he has a prima facie case with probability of success.

b) That the Applicant will suffer irreparable loss which cannot be adequately compensated in any way or by an award of damages.

c) When the Court is in doubt, to decide the case on a balance of convenience.

Has the Applicant satisfied the above criteria?

It is evident that the Plaintiff/Applicant purchased the suit property herein when the 1st Defendant did not have capacity to sell the said property to the Plaintiff or any other parties. The property had been reverted back to the name of the deceased Mwaura Wangonya, and in selling the same, the 1st Defendant was infact meddling in the property of the deceased. Infact the court vide a Ruling delivered on 17th March 2016, held that the 1st Defendant should be cited for contempt of court. The 1st Defendant did not have capacity to sell the suit land to any third party let alone the Applicant herein. Therefore the 1st Defendant did not pass a good title to the Applicant herein. Even if the suit land was initially registered in the name of the Plaintiff/Applicant, that entry was cancelled and revoked through a Court Order. Even if the Applicants are holding a Certificate of title, that Certificate of title was revoked and the entry in the register was rectified. The Applicants title has no legal effect and cannot give them proprietorship. This parcel of land is subject of Succession Cause and the Applicant can only lay their claim in the Succession Cause that would be filed by both the 1st and 2nd Defendant herein especially during the distribution of the said estate.

For now the Court finds that the Plaintiff/Applicant has not established that it has a prima-facie case with probability of success at the trial.

On whether the Applicant will suffer irreparable loss which cannot be compensated by an award of damages, the Court finds that the purchase price that the Plaintiff/Applicant paid to 1st Defendant is a known amount. The allegedly heavy investments on the suit property can be quantified and can be payable in monetary terms. However the suit property herein is a property of the deceased and the estate of the deceased stands to suffer if Plaintiff is allowed to remain on the suit property. Again that would mean breaching of the Court Orders that were issued on 30th November 2014 and 17th March 2016. That would cause embarrassment to the Judiciary and the Rule of Law. The Court finds that there is no evidence that the Applicant herein would suffer irreparable loss which cannot be compensated by an award of damages.

Further on the third limb, the Court finds that it is not in doubt at all. However if the court is to decide on the balance of convenience, it finds that the balance of convenience tilt in favour of maintaining the orders issued by the court in Succession Cause No.180 of 2011 on 30th November 2011. The Defendants herein should file Succession Cause over the estate of the deceased, Mwaura Wangonya, and have the property therein distributed as per the provisions of Succession Act.

The Applicant has an option of filing a Civil Suit against the 1st Defendant seeking for refund of purchase price, damages, costs and interest thereon, or stake a claim in the Succession Cause. However the 2nd Defendant’s only recourse is in the Succession Cause and the Court should allow the parties to take that path.

Having now carefully considered the available evidence, the Court finds that the Plaintiff/Applicant’s Notice of Motion dated 31st October 2016 is not merited. Consequently, the said Notice of Motion application is dismissed entirely with costs to the 2ndDefendant/Respondent herein.

Further, for the purpose of preserving the suit property until the intended Succession Cause is filed, the Court directs the Land Registrar, Gatundu Land Registry to put a caveat on the suit property and stop any further dealings of the suit property by the 1st Defendant solely except only on orders or dealings emanating from any Succession Cause wherein both the 1st and 2nd Defendants are involved and the said dealing be done in the presence of the 2nd Defendant herein.

It is so ordered.

Dated, Signed and Delivered at Thika this 27th day of April2018.

L. GACHERU

JUDGE

In the presence of

M/s Wangeshi holding brief for M/S Nganga for Plaintiff/Applicant

No appearnce for 1st Defendant/Respondent

Present in person for 2nd Defendant/Respondent

Lucy - Court clerk.

Court – Ruling read in open court in the presence of the above stated parties.

L. GACHERU

JUDGE

27/4/2018