[2004] KEHC 2528 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Suit 911 of 2004

1. SAMUEL MACHARIA ……………...........................................…..1ST PLAINTIFF

2. JOHN NYENJERI MBUGUA…….........................................…….2ND PLAINTIFF

3. LILIAN WANGARI …………………...........................................…3RD PLAINTIFF

4. NANCY WANJIKU MBUGUA ……..........................................….4TH PLAINTIFF

5. MARY GATHONI MBUGUA……..........................................……5TH PLAINTIFF

6. HUDSON NDIKIMI MBUGUA……..........................................….6TH PLAINTIFF

7. HELLEN NJERI MBUGUA……….........................................…..7TH PLAINTIFF

-versus-

PHILIP NJOROGE MBUGUA ………........................................……..DEFENDANT

RULING

In the Notice of Motion dated and filed under certificate of urgency on the 27th August 2004, the Plaintiffs/Applicants have sought various orders including interlocutory mandatory injunctions to remove the Defendant/Respondent from the suit properties in the Motion more particularly described and to return possession thereof to the Applicants. The application is premised on the six grounds set forth therein and supported by the affidavits of the Applicants made on the 27th August 2004 and the 28th October 2004.

The Respondent, a brother of the Applicants, opposes the application and has filed two affidavits made on the 8th and 18th air October 2004 respectively.

In addition to relying on the matters deponed to in the Applicants’ said affidavits in support of the application Mr. Kibunja, their learned counsel, argued in submissions that the Applicants, by virtue of Title Deeds issued to each of them under the provisions of the Registered Land Act [Cap, 300] are vested with the respective proprietorships of the suit properties, namely Title Numbers Lari/Kijabe/291 - 297 inclusive, under section 27 of the Act and their respective rights as such are absolute and not liable to be defeated except as provided in the Act by virtue of section 28 thereof.

On the allegations of fraud deposed to in the Respondent’s said (affidavits, Mr. Kibunja argued that even if the provisions of the Law of Succession Act [Cap. 160] and the Land Control Act [Cap. 302] respectively were not duly complied with (to which the Applicants do not admit), the Respondent’s remedy lies in Administration Cause No.560 of 1978 relating to the estate of Nahashon Mbugua Ndikimi, the deceased father of the parties hereto, of which the suit properties, then known as Title Number Lari/Kijabe/l40 prior to the sub-division thereof, formed part. . Such allegations, it was contended, should be directed at the Public Trustee who administered the estate. Relying on the unreported Ruling dated the 5th February 2004 of Ibraham, J. in Nairobi (Milimani Commercial Courts) HCCC No. 8 of 2004 - Kenya Hotels Ltd. v. Kenya Commercial Bank Ltd. and Another,Mr. Kibunja urged that the mandatory orders sought be granted not only because the Respondent has no legal or equitable right to remain on the suit properties, and may well if allowed to remain in occupation permanently change the character and condition thereof to the detriment of the Applicants, but also because damages would not be an adequate remedy for any loss or damage suffered by the Applicants.

Mr. Solonka, for the Respondent, and in amplification of the matters deponed to in the Respondent’s said affidavits, contended that the Applicants’ titles to the suit properties are null and void for all purposes and of no effect as the provisions of section 6 of the Land Control Act aforesaid were not complied with in relation to the respective transfers in favour of the Applicants. In support of his argument, learned counsel referred me to the decisions in Githuchi Farmers Co. Ltd. v. Gichamba and Another [1973] E. A. 8 and James Jorge Githu v. Dickson Katibi (Civil Appeal No. 47 of (hi 1989) (unreported).

Citing Gicheru Kahiu and Two Others v. Muniu Kahiu(Civil Appeal No 265 of 1998) (unreported), Mr. Solonka further argued that the Applicants ought to have tendered documentary evidence in support of their Title Deeds including the instruments of transfer to themselves, together with the letters of consent thereto of the Land Control Board, the surveyor's report, the mutation forms and all such other documents as may be relevant to assist the court.

Finally, counsel urged that the balance of convenience lay with the Respondent who had been in occupation of the suit properties Since 1978 and would be displaced if evicted therefrom. In any event, Title Number Lari/Kijabe/290 which the Applicants allege belongs to the Respondent is, in fact, registered in the names of the fifth and sixth Applicants. Mr. Solonka urged that I follow the Court of Appeal decision in Dickson Mwangi vs. Braeburn Ltd. T/A Braeside School (Civil Appeal No. 12 of 2004) (unreported) in refusing to grant the mandatory injunctions sought by the Applicants.

I have well considered the application and depositions in conjunction with the respective submissions of learned counsel.

Notwithstanding the serious allegations of fraud and forgery contained in the Respondent’s Replying Affidavit of the 8th October 2004, the Applicants in their further Affidavit made on the 28th October 2004 failed, in my judgment, adequately to explain the allegations made as to breach of the respective provisions of the Law of Succession Act and the Land Control Act aforesaid. Even at this interlocutory stage and having had due notice that their respective titles were being challenged by the Respondent, the Applicants, who had every opportunity, ought to have supported their application by evidence availed by the Public Trustee and the Kiambu District Land Surveyor and Land Registrar respectively. The Applicants elected to omit this evidence with the result that on the material before me, I am not, even on the balance of convenience, persuaded that the Applicants have met the conditions for the granting of the orders they seek.

In addition to the foregoing, 1 have also given particular consideration to the Respondent’s contention that the transfers to each of them the Applicants are void for want of consent of the relevant Land Control Board. By the Instrument of Transfer registered on the 2nd August 1996, the Public Trustee transferred Title Number Lari/Kijabe/l40 to the fifth and sixth Applicants in their personal capacities and as trustees for the other Applicants and the Respondent respectively. The Public Trustee’s reasons for so doing are explained in his letter to the Kiambu District Land Registrar dated the 5th August 1996.

Though an undated letter of consent of the Lari Land Control Board to the sub-division of Title Number Lari/Kijabe/l40 aforesaid has been produced by the Applicants, which letter was challenged by the Respondent on several grounds, no letter or letters of consent to the respective transfers in favour of the Applicants was or were obtained because, in Mr. Kibunja's opinion, such transfers are exempt from the provisions of the Land Control Act by virtue of section 6(3) (a) thereof being transmissions of land by virtue of the will or intestacy of a deceased person. The sub-section is, however, qualified by the following words:-

“unless that transmission would result in the division of the land into two or more parcels to be held under separate titles;”

From the Applicants’ own evidence, Title Number Lari/Kijabe/l40 has been sub-divided into eight portions seven of which, being the suit properties, are now owned individually by each of them the Applicants under separate titles.

I cannot therefore see how the respective transmissions in favour of the Applicants can be said to be outside the ambit of the Land Control Act and, in the absence of a letter or letters of consent thereto thereunder, the application must fail. Consequently, 1 hereby dismiss the Notice of Motion dated and filed on the 27th August 2004 with costs to the defendant/respondent and order accordingly.

Dated and delivered at Nairobi this nineteenth day of November 2004.

P.KIHARA KARIUKI

AG. JUDGE