[2017] KEELC 1269 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 154 OF 2016

SAMUEL NJARAMBA WAGITU....................................1ST PLAINTIFF

RICHARD LIWA MAUYE (Suing as the Legal Representative of

MAUYE MUSAU(deceased).........................................2ND PLAINTIFF

VERSUS

MICHAEL NGILA MWANIA.......................................1ST DEFENDANT

PHILIP KAARIA M’MBUTURA.................................2ND DEFENDANT

MIKI SHELTER LIMITED..........................................3RD DEFENDANT

THOMAS MAINGI WAMBUA....................................4TH DEFENDANT

DISTRICT LAND REGISTRAR

MACHAKOSDISTRICT.............................................5TH DEFENDANT

RULING

1. In the Application dated 12th October, 2016, the Plaintiffs are seeking for the following orders:

a.That this Honourable Court be pleased to issue an order of injunction restraining the Defendants/Respondents, their agents, servants and or employees from trespassing on, further sub-dividing, transferring, occupying and or alienating the Plaintiffs’/Applicants’ parcels of land known as;

i.L.R. No. Donyo Sabuk/Komarock Block 1/20559

ii.L.R. No. Donyo Sabuk/Komarock Block 1/20564

iii.L.R. No. Donyo Sabuk/Komarock Block 1/20565

iv.L.R. No. Donyo Sabuk/Komarock Block 1/20561

v.L.R. No. Donyo Sabuk/Komarock Block 1/22515 and

vi.L.R. No. Donyo Sabuk/Komarock Block 1/22516 pending the hearing and determination of the suit herein.

b.That costs of this Application be provided for.

2. The Application is supported by the Affidavit of the 1st Plaintiff who has deponed that in August, 2008, the deceased agreed to sell to him a parcel of land in Koma Ranch; that the deceased identified the 1st Defendant as a surveyor and that it is him (the 1st Plaintiff)who paid the surveyor’s fees.

3. It is the Plaintiffs’ case that the 1st Defendant, in the presence of the deceased, gave him the mutation form showing the boundaries of land known as Donyo Sabuk/Komarock Block 1/20559, 20564 and 20565.

4. According to the Plaintiff, the deceased applied for and was granted the consent of the Land Control Board on 18th December, 2008 and executed the Agreement of Sale on 20th December, 2008; that he paid the deceased the agreed amount of Kshs. 3,600,000 for the suit a properties and that in early March, 2009, the 1st Defendant gave him the Title Deed for Plot No. 20559.

5. It is the Plaintiffs’ case that he later learnt that the mutation form containing a land sub-division map different from the one issued to them by the 1st Defendant had been registered at the Lands office on 5th February, 2009 and that Titles Deeds for parcel of land known as Donyo Sabuk/Komarock Block 1/20564 and 20565 had been issued to the 2nd Defendant.

6. The 1st Plaintiff further deponed that parcel number 20561 had been curved out of parcel number 20559 and was further sub-divided to create two new parcels being parcel numbers 22515 and 22516; that Mr. Mauye Musau died on 5th September, 2015 and that plot number 22516 was transferred to the 3rd Defendant while plot number 22515 was transferred to the 4th Defendant.

7. The 1st Plaintiff finally deponed that plot number 22515 was transferred to the 4th Defendant after the demise of the deceased; that the 1st Defendant perpetuated the fraud because he was the one holding the consents of the Board which he had received from himself and that an order of injunction should issue.

8. In response, the 1st Defendant deponed that it is over eight (8) years since the alleged cause of action arose; that he met the 1st Plaintiff and the late Mauye Musau in the year 2008 and that by the time the 1st Plaintiff and the late Musau entered into the agreement of 20th December, 2008, the suit land had not been sub-divided.

9. It is the 1st Defendant’s case that he is not the one who surveyed the land; that the land that the 1st Plaintiff purchased was Plot No. 20559 measuring approximately 36 acres and that he obtained a Title Deed for the said land.

10. The 1st Defendant denied ever receiving instructions for the transfer of plot numbers 20564 and 20565 to the 1st Plaintiff and that it is not true that Plot No. 20561 was curved out of plot number 20559.

11. It is the 1st Defendant’s case that Plot No. 20561 was sold to Mr. Benson Musyoki who sold it to him.

12. According to the 1st Defendant, he sold the plot to the 3rd Defendant and the 4th Defendant whereupon the deceased caused the land to be sub-divided into plot numbers 22515 and 22516; that the 3rd and 4th Defendants bought the land in the year 2009 and that it will be unfair to injunct them from utilizing the plots.

13. The 4th Defendant deponed that he is the registered proprietor of parcel of land known as Donyo Sabuk/Komarock Block 1/22515 and that he purchased the said plot vide an agreement dated 26th March, 2009 from Mr. Mauye Musau.

14. The Plaintiff filed a Supplementary Affidavit which I have considered. I have also considered the submissions and the authorities that were filed by the Plaintiffs and the Defendants.

15. It is not in dispute that the late Mauye Musau was the registered proprietor of land known as Donyo Sabuk/Komarock Block 1/983 which was sub-divided before his demise.

16. According to the mutation form that has been annexed on the Plaintiffs’ Supporting Affidavit, the said land was sub-divided into seven portions, being parcels number 20559-20565 and marked as A-G.

17. From the copies of the exhibited mutation form, it is not clear if the same was ever registered by the District Land Registrar for the purpose of issuing Title Deeds.

18. The 1st Plaintiff has exhibited the Sale Agreement dated 20th November, 2008 showing that he purchased portion numbers 20564, 20565 and 20559 for Kshs. 3,600,000 from the late Mauye Musau.

19. The 1st Plaintiff has also annexed on his affidavit the unregistered Transfer documents which were purportedly signed by the deceased on 20th August, 2008 in respect to the three plots, which documents, according to the Plaintiffs, he handed over to the 1st Defendant for processing of the Title Deed.

20. Instead of getting the Title Deeds in respect of the three parcels of land, the 1st Plaintiff has deponed that he only obtained the Title Deed in respect to plot number 20559. The 1st Plaintiff has annexed the said Title Deed on his Affidavit.

21. It would appear that Plot No. 20564 and 20565 was transferred to the 2nd Defendant; Plot No. 22516 was transferred to the 3rd Defendant while Plot No. 22515 was transferred to the 4th Defendant.

22. The 1st Plaintiff’s case is that the 1st Defendant misled him and the deceased into believing that the three parcels that he had purchased measured 36 acres while in actual fact, the whole land was 41. 875 acres.

23. The 4th Defendant’s claim is that he purchased portion number 22515 from the late Mauye Musau vide an agreements dated 26th March, 2009. However, the agreement between the deceased and the 4th Defendant has not been exhibited.

24. Although the 4th Defendant has deponed that he paid the deceased, through his advocate (also deceased) Kshs. 850,000, he has not offered any evidence to show the mode he used to pay the deceased the said Kshs. 850,000.

25. The 4th Defendant’s case that he purchased plot number 22515 from the deceased is therefore not supported by any evidence.

26. The 1st Defendant has deponed that the portion that the Plaintiff purchased was Plot No. 20559 measuring 36 acres; that the mutation forms for plot numbers 20559, 20564 and 20565 had not been lodged by the time the purported consents of the Land Control Board were issued on 18th December, 2008 and that the deceased never instructed him to transfer plot numbers 20564 and 20565 to the Plaintiff.

27. According to the 1st Defendant, it is Benson Musyoki who purchased Plot Nos. 20561 from the deceased and that Musyoki sold to him the land in the year 2008. That is when he sold the land to the 3rd Defendant and the 4th Defendant after sub-dividing it to form plot numbers 22515 and 22516.

28. Indeed, the question of whether the said Benson Musyoki passed a valid title to the 1st Defendant in respect to the land he subsequently sub-divided and sold to the 3rd and 4th Defendants can only be ascertained at trial.

29. Considering that the 1st Plaintiff has produced a Sale Agreement showing that he purchased plot numbers 20564 and 20565, which have since been sub-divided, and in the absence of an Affidavit by Mr. Musyoki to show that plot number 153 which he purported to have bought from the deceased in the year 2002 is the same land that the Plaintiff purchased, I find that the Plaintiff has established a prima facie case with chances of success.

30. For those reasons, I allow the Plaintiffs’ Application dated 12th October, 2016 as prayed.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF NOVEMBER, 2017.

O.A. ANGOTE

JUDGE