[2011] KEHC 3040 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

LAND AND ENVIRONMENTAL LAW DIVISION

CIVIL SUIT (ELC) NO.317 OF 2010

STANLEY THIONGO NDUATI……………………1ST PLAINTIFF

LEONARD KIRORI KARIUKI…………………….2ND PLAINTIFF

VERSUS

JAMES WACHIRA HARISSON…………………1ST DEFENDANT

EMBAKASI RANCHING COMPANY LTD….…2ND DEFENDANT

CHIEF LANDS REGISTRAR…….………………3RD DEFENDANT

COMMISSIONER OF LANDS...…………………4TH DEFENDANT

THE HON. THE ATTORNEY GENERAL……...5TH DEFENDANT

R U L I N G

1. Stanley Thiongo Nduati and Leonard Kirori Kariuki (hereinafter referred to as the applicants) have moved this court by way of a notice of motion seeking an order of temporary injunction restraining James Wachira Harrison and Embakasi Ranching Co. Ltd. (hereinafter referred to as 1st and 2nd respondents) respectively, from dealing with or in any way interfering with LR. No. Nairobi Block 105/5811 and LR. No. Nairobi Block 105/5812 (herein referred to as the suit properties) pending the hearing of a suit which they have filed against the respondents.

2. The applicants claim to be the proprietors of the suit properties having acquired them through an agreement of sale entered into with the late John Muigai Mugo a director and shareholder in a land purchase scheme administered by the 2nd respondent. The applicants are aggrieved by the 1st respondent who has trespassed into the suit properties claiming that the suit properties belong to him. The applicants allege that the 1st respondent has through illegal and irregular circumstance obtained ownership documents from the 2nd respondent claiming to have been allocated the said parcels by the 2nd respondent and is attempting to have the land registered in his name. The applicants therefore pray for the interlocutory orders sought as they are apprehensive that should the 1st respondent acquire a first registration of the suit property, the applicants’ rights will be extinguished and they will thereby suffer irreparable loss.

3. The 1st respondent swore a replying affidavit in which he pointed out that the application dated 5th July 2010 was fatally defective, and that the application has no merit since the applicants have not established a prima facie case that they are the owners of the suit property, or that the late John Muigai Mugo was ever a director of 2nd respondent or was allocated any shares in the 2nd respondents company or that the plots allegedly sold to the applicant were the ones allocated the official registration number after survey of the 2nd respondents land. The 1st respondent maintains that he paid all the required fees for 5 plots (including the suit properties) to the 2nd respondent, and that he received leases for the suit properties from the 2nd respondent. The 1st respondent therefore denies being a trespasser on the suit premises. The 1st respondent further contends that the applicant has come to court seeking equitable remedy with unclean hands and is undeserving of the orders sought.

4. James Karanja Mwangi a director of the 2nd respondent also swore a replying affidavit in which he explained that the 2nd respondent’s board of directors together with the surveyors re-examined their records and found that the 2nd respondent had mistakenly allocated the suit properties to the 1st respondent and proceeded to execute a transfer of the forms in favour of the 1st respondent. The 2nd respondent’s director swore that the examination of their records confirmed that the applicants bought the suit properties form John Muigai Mugo and that the transfer of the two shares was executed with the knowledge and consent of the 2nd respondent. It was therefore claimed that the confusion between the applicant and the 1st respondent regarding ownership of the suit properties was caused by a bona fide mistake.

5. In response to the affidavit sworn by the 2nd respondent’s director, the 1st respondent swore a further replying affidavit reiterating the position that he bought 5 shares from the 2nd respondent and was allocated the suit properties by the 2nd respondent, and that the 2nd respondent was colluding with the applicant with the intention of denying 1st respondent ownership of the disputed plots.

6. I have carefully considered the application, the affidavit in support and in reply, as well as the submissions made by counsels. I find it evident that there is a dispute regarding the ownership of the suit properties. The applicants’ contention that the suit properties belong to them has been supported by the 2nd respondent. I am satisfied that the 1st respondent has established a prima facie case with probability of success. Moreover the dispute involves land subject of a 1st registration, therefore unless the order sought are granted, the transfer and registration of the suit property may be effected and this would expose the applicants to irreparable loss.

7. Accordingly, it is fair and just that the suit properties which are the subject of the suit be preserved through an injunction order. I therefore grant the notice of motion dated 5th July 2010 and issue the order of interlocutory injunction restraining the 1st and 2nd respondents from dealing with or in any way interfering with the suit properties during the pendency of this suit.

8. In accordance with Order 40 Rule 6 of the Civil Procedure Rules 2010 this interlocutory injunction shall lapse 12 months from the date hereof. Parties are therefore directed to finalize the pre-trial procedures with a view to having the suit disposed of without undue delay.

9. Costs shall be in the cause.

Dated and delivered this 11th day of February, 2011

H. M. OKWENGU

JUDGE

In the presence of: -

Kimathi for the plaintiff

Githaara H/B for Kamau for the defendant

B. Kosgei - Court clerk