[2016] KEELC 820 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT KISII

CASE NO. 90 OF 2015

THOMAS SHADRACK OTOCHI...............................1ST PLAINTIFF

SEREPHINA ONGONDO...........................................2ND PLAINTIFF

VERSUS

DANIEL MOSOMI MOGERE.....................................1ST DEFENDANT

KENYA INDUSTRIAL ESTATES LTD.......................2ND DEFENDANT

RULING

1. The plaintiffs commenced the instant suit by way of a plaint dated 5th March 2015. The plaintiffs claim that by separate agreements entered into with the 1st defendant in 2007, the 1st defendant sold portions of his land parcel West Mugirango/Siamani/3219 (hereinafter referred to as the “suit property”) and that each of the plaintiffs was granted vacant possession and they each occupied their respective portions which they have developed by putting up permanent buildings. The 1st defendant has not subdivided the suit property to effect transfer of the respective portions to the plaintiffs.

2. The plaintiffs aver that in December 2014 they got information that the suit property stands the risk of being auctioned on account of a loan advanced to the 1st defendant by the 2nd defendant on the security of the suit land. A search of suit property at the lands office revealed that the 1st defendant obtained a loan of kshs. 400,000/= from the 2nd defendant on 1st April 2013 and a charge was registered against the property. The plaintiffs stated that by the time the loan was advanced they had already occupied their portions of the land and had constructed permanent houses thereon.

3. Simultaneously with the plaint the plaintiffs filed a Notice of Motion application dated 5th March 2015 which is the subject of this ruling. The plaintiffs seek a temporary injunction restraining the defendants, their agents and/or servants from in any way disposing of land parcel number West Mugirango/Siamani/ 3219 until the plaintiffs interests are taken care of by way of subdivision, transfer and registration of their respective portions in their names. The plaintiffs’ application is premised on the grounds set out in the face of the application and the supporting affidavit sworn by the 1st plaintiff on 5th March 2016. The plaintiffs set out interalia the following grounds in support of the application:-

1. That the plaintiffs bought their respective portions in the year 2007 and have since settled on the said portions.

2. That the loan, the subject matter between the defendants was transacted in the year 2013 when the plaintiffs were already on the suit land.

3. That the plaintiffs stand to suffer irreparable loss/damage if the defendants were to dispose the suit property as threatened.

4. That the balance of convenience tilts towards preserving the status quo until the suit is heard and determined.

The supporting affidavit by the 1st plaintiff reiterates the grounds set out in support of the application and furnishes annextures “TSO1” to support the averment that the 1st defendant sold a portion of the suit land to the 1st plaintiff in 2007. Annexture “TSO2” the official search confirms the charge was taken by the 2nd defendant on 1st April 2013.

4. The 2nd defendant filed a replying affidavit sworn on 1st April 2015 by one Edna Adala, a manager legal services of the 2nd defendant in opposition to the plaintiffs’ application. By the replying affidavit the 2nd defendant avers that the 2nd defendant entered into a loan agreement with one Evans Ngota Ndege to lend him kshs. 400,000/= which loan was duly disbursed. The copy of loan agreement and copy of cheque for kshs. 400,000/= are annexed and marked “EA-1”. The 2nd defendant further states that the loan was guaranteed by Daniel Mosomi Mogere, the 1st defendant herein and annexes a copy of the deed of guarantee marked “EA-2”. The 2nd defendant states that, the 1st defendant in support of the guarantee, executed a charge over land parcel West Mugirango/Siamani/3219 in favour of the 2nd defendant as per the charge document dated 4th January 2012 annexed and marked “EA-3”.

5. The 2nd defendant avers that following default in the repayment of the loan advanced to the borrower, the 2nd defendant took the necessary and appropriate steps to enforce the security and has complied with the provisions of Land Registration Act, 2012 as relates to service of notice on the chargor, the 1st defendant herein. In the premises the 2nd defendant contends that it is entitled to realize the security since as at the time of taking the charge, the property the subject matter had no encumbrances and the charge was validly registered. The 2nd defendant asserts the plaintiffs have no legally recognizable interest over the suit property.

6. The 1st defendant did not file any replying affidavit to the application for injunction but filed a statement of defence dated 31st March 2015 by which he virtually admits he sold portions of his land parcel No. West Mugirango/Siamani/3219 to the plaintiffs which he had not as yet transferred to the plaintiffs and at the same time denies having offered his said parcel of land as security for the loan advanced by the 2nd defendant to Evans Ngota Ndege. Paragraphs 4, 5, 6 and 7 of the statement of defence are reproduced hereunder as I consider them relevant to the instant application:-

4. The 1st defendant avers that he sold a portion of his land to the plaintiffs and was in the process of transferring the said parcels to the plaintiffs but due to the loss of his title deed in respect of West Mugirango/Siamani/ 3219 the same has not been effected.

5. The 1st defendant denies the contents of paragraph 7, 8 and 9 of the plaint and avers that he has never secured and/or obtained any loan from the 2nd defendant as alleged.

6. The 1st defendant avers that he has never used his suit parcel West Mugirango/Siamani/3219 as security for any loan as alleged and such allegations shall be forgery of the 2nd defendant and Evans Ngota Ndege who is a stranger to the 1st defendant.

7. The 1st defendant having sold portions of his said land to the plaintiffs shall also pray that an injunction do issue against the 2nd defendant and the said sold portions be transferred to the plaintiffs as sought in the plaint.

7. Arising from the above averments in the defence filed by the 1st defendant the validity of the instrument of charge held by the 2nd defendant is put to question. The assertions by the plaintiffs also that they purchased portions of the 1st defendant’s parcel of land and that completion of the transaction was only held back by the loss by the 1st defendant of his title to the land is equally validated.

8. The 2nd defendant no doubt jolted by the defence filed by the 1st defendant, by a chamber summons application dated 21st October 2015 applied for leave to issue a third party notice to Evans Ngota Ndegwa the borrower for full indemnity in the event that the court was to find the 2nd defendant liable to the plaintiffs and/or the 1st defendant. The court on 12th November 2015 granted leave to the 2nd defendant to issue a third party notice as prayed in the chamber summons.

9. Although the plaintiffs and the 2nd defendant filed written submissions to canvass the plaintiffs’ Notice of Motion dated 5th March 2015, on the material which I have highlighted hereinabove I am persuaded this would be a proper case to preserve the subject matter of the suit being the suit property pending the hearing of the suit. The 1st defendant admits the agreement with the plaintiff and has availed documents to demonstrate he intended to effect the subdivision and transfer of the portions acquired by the plaintiff. Consent for subdivision of the suit land into 3 portions by the Land Control Board dated 13th November 2008 is included in the 1st defendant’s bundle of documents filed. The 1st defendant has pleaded that it is the loss of the original title that prevented him from completing the transaction in favour of the plaintiffs. He has denied executing the guarantee and the charge in favour of the 2nd defendant. The plaintiffs have occupied and developed the portions they were sold since 2007 and the 1st defendant has indicated he is prepared and willing to complete the transfer to the plaintiffs and is not contesting the agreement he entered with the plaintiffs.

10. At this point in time the court is not in a position to hold that the 1st defendant validly and properly executed the guarantee and the charge. He claims the documents are forgeries. The validity of the charge or otherwise in these circumstances can only be determined at the trial when witnesses testify and are cross-examined.

11. In the circumstances of this matter, my view is that even though in a strict sense the plaintiffs may not have demonstrated they have a prima facie with a probability of success, I cannot nonetheless hold that their case is frivolous and/or hopeless. They have an arguable case. The balance of convenience no doubt would tilt in the plaintiffs favour on the basis that they are in occupation and have been in possession since 2007 and have further effected developments on the suit property. The 2nd defendant has a fallback position, a third party notice having been issued to the borrower on their application. The balance of convenience would be in favour of maintaining the status quo until the suit is heard.

12. The upshot is that I find merit in the plaintiffs application dated 5th March 2015 and I accordingly grant an order of injunction on the terms that the defendants, their agents and/or servants are hereby restrained from disposing or offering for sale land parcel No. West Mugirango/Siamani/3219 pending the hearing and determination of this suit. The costs of the application shall be in the cause.

Ruling dated, signedand deliveredat Kisii this 20th day of May, 2016.

J. M MUTUNGI

JUDGE

In the presence of:

………………………………………….. for the 1st and 2nd plaintiffs

………………………………….……… for the 1st defendant

………………………………….……… for the 2nd defendant

………………………………….……… Court assistant

J. M. MUTUNGI

JUDGE