[2013] KEHC 6451 (KLR)
The court found that the plaintiff, as the administratrix of the estate of the late Joseph Maina Nganga, had established a prima facie case with a probability of success. The evidence, including the certificate of confirmation of grant and the title deed, demonstrated her authority over the property. The court was...
Source-derived case information.
- Citation
- [2013] KEHC 6451 (KLR)
- Parties
- Plaintiff: Sylvia Mwakwanyaga; Defendant: Joseph Maina Nganga; Defendant: Geofrey Kinyanjui Mungai; Defendant: Elizabeth Nyawira Mbugua; Defendant: Jonathan Sorimpan Massore; Defendant: Joel Mutarura Karanja; Defendant: Susan Wamaitha Nyokabi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 405 of 2013
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Prohibitory and Rectification Orders
- Outcome
- Interlocutory prohibitory order confirmed; plaintiff to fix suit for formal proof; costs in the cause.
- Judges
- CM Kariuki
- Legal Topics
- Fraudulent Land Transfer, Rectification of Register, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sylvia Mwakwanyaga
Plaintiff
Joseph Maina Nganga
Defendant
Geofrey Kinyanjui Mungai
Defendant
Elizabeth Nyawira Mbugua
Defendant
Jonathan Sorimpan Massore
Defendant
Joel Mutarura Karanja
Defendant
Susan Wamaitha Nyokabi
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Prohibitory and Rectification Orders
Legal Issues
- 1 Whether the plaintiff, as administratrix of the estate, has locus standi to seek rectification of the land register and prohibitory orders.
- 2 Whether the subdivision and transfer of title Kajiado/Kipeto/175 to new titles was fraudulent and illegal.
- 3 Whether the plaintiff is entitled to interlocutory prohibitory orders and rectification of the land register.
Ratio Decidendi
The court found that the plaintiff, as the administratrix of the estate of the late Joseph Maina Nganga, had established a prima facie case with a probability of success. The evidence, including the certificate of confirmation of grant and the title deed, demonstrated her authority over the property. The court was satisfied that the subdivision and transfer of the suit property by the defendants, who were unknown to the plaintiff and had not responded to the proceedings, was fraudulent and illegal. The court held that irreparable harm would result if the defendants were not restrained from further dealings with the property. Accordingly, the court confirmed the interim prohibitory order...
Court Disposition
Interlocutory prohibitory order confirmed; plaintiff to fix suit for formal proof; costs in the cause.
Orders
- The interim order of prohibition against dealings with title Kajiado/Kipeto/175 is confirmed pending hearing of the suit.
- Plaintiff to fix the suit for formal proof hearing.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT & LAND DIVISION
ELC SUIT NO. 405 OF 2013
SYLVIA MWAKWANYAGA..................…..................... PLAINTIFF
VERSUS
JOSEPH MAINA NGANGA …...........................1ST DEFENDANT
GEOFREY KINYANJUI MUNGAI......................2ND DEFENDANT
ELIZABETH NYAWIRA MBUGUA....................3RD DEFENDANT
JONATHAN SORIMPAN MASSORE................4TH DEFENDANT
JOEL MUTARURA KARANJA..........................5TH DEFENDANT
SUSAN WAMAITHA NYOKABI.........................6TH DEFENDANT
RULING
The plaintiff filed the instant suit vide the plaint dated 21st March, 2013 and simultaneously with the plaint the plaintiff filed the notice of motion of even date where inter alia the plaintiff sought the following orders:
That leave be granted for service of process to be effected on the defendants by way of substituted service.
That pending the hearing and determination of this application inter partes an inhibiting order do issue against title number Kajiado/kipeto/175, the original number by cancelling and nullifying the purported subdivision and title numbers Kajiado/Kipeto/4348, 4349 and 5620 and reverting the register in its original form and as it existed prior to the purported subdivision and consolidation by the 1st, 2nd, 3rd, 4th, 5th and 6th defendants.
That upon hearing of this application inter partes this Honourable court be pleased to order rectification of the register in respect of title number Kajiado/Kipeto/175, the original number by cancellation and nullifying the purported subdivision and title numbers Kajiado/Kipeto/4348, 4349 and 5620 and reverting the register in its original form as it existed prior to the purported subdivision and consolidation by the 1st, 2nd, 3rd, 4th, 5th and 6th defendants.
The plaintiff’s application is supported on the grounds set out on the face of the application and in the supporting affidavit sworn by the plaintiff on 21st March, 2013. Inter alia the plaintiff states that she is the sole administratrix of her deceased husband JOSEPH MAINA NGANGA who was the registered owner of the parcel of land title number Kajiado/Kipeto/175. The plaintiff further states that the 1st – 6th Defendants who are unknown to her have purported to subdivide the subject parcel of land without her knowledge and/or consent and contends that the resultant subdivision are fraudulent and illegal as they were carried out without her authority and/or consent.
At the exparte stage the court on 26th March, 2013 ordered service of process to be effected on the defendants by way of substituted service and as per the affidavit of service dated 2nd April, 2013 and filed in court on the same date the defendants were duly served by way of newspaper advertisement in the Daily Nation of Friday, 29th March, 2013. On the 2nd April, 2013 when the matter was listed before me I adjourned the hearing of the Notice of Motion to 18th April, 2013 to afford the defendants the opportunity to appear and file a response to the application.
On 18th April the Defendants had neither appeared and/or filed any response and the court granted an interim order of prohibition pending the hearing of the application inter partes on 20th may, 2013.
On the 20th May, 2013 the court directed the plaintiff to file written submission in regard to the Notice of Motion and on 26th June, 2013 the court reserved the ruling on this application for delivery on 31st July, 2013. The Defendants as at 26th June, 2013 had neither appeared and/or filed any response.
I have reviewed the pleadings, the Notice of Motion application together with the affidavit in support and the annextures and I am satisfied that indeed the plaintiff is the administratix of the estate of the late Joseph Nganga Maina as per the copy of the certificate of confirmation of grant of letters of administration intestate dated 17th January, 1997 annexed to the plaintiff’s affidavit and marked as “SMM1” I am further satisfied that indeed the said Joseph Nganga Maina was the registered proprietor of the suit property title number Kajiado/Kipeto/175 as per the copy of the Title Deed dated 22nd October, 1987 attached to the plaintiffs bundle of documents. This property as per the schedule of distribution appended to the certificate of confirmation of grant aforementioned was supposed to go to Wilfred Nganga Maina as the beneficiary.
The plaintiff has deponed that she had no dealings with any of the Defendants whom she does not even know. From an examination of the abstracts of title annexed to the plaintiffs affidavit it would appear that the 1st defendant who carried the name of Joseph Maina Nganga similar to the plaintiff deceased husband must have impersonated the plaintiffs husband and perpetrated what would be described as fraudulent and illegal acts as regards the subject suit property.
In the premises I hold the plaintiff has demonstrated she has a prima facie case with a probability of success.
I further hold that the damage she and the beneficiary of the subject parcel of land would suffer would be irreparable if the defendants are not restrained and prohibited from further dealing with the suit property. In the premises I confirm the interim order granted to the plaintiff herein pending the hearing of the suit and direct that the plaintiff fixes the suit for formal proof hearing since the defendants have neither appeared or filed any response or defence to the suit.
The costs for this application will be in the cause.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2013.
J. M. MUTUNGI
JUDGE
In the presence of:
………………………………………….............……… for the Plaintiff
……………………..............................…...……. for the Defendants