Alex Isoe Moseti & 2 others v Lorna Adhiambo Aduor & 5 others [2012] KEHC 2229 (KLR)

1. ALEX ISOE MOSETI

2. CHARLES MWANGI MUCHIRI

3. JOHN MAKUSI SIMIYU.............................................PLAINTIFFS

VERSUS

1. LORNA ADHIAMBO ADUOR

2. CHARLES ONSARE GICHABA

3. RICHARD OLUOCH OCHIEL

4. R & T EMPLOYEES HOUSINGCO-OPERATIVE SOCIETY LTD

5. DISTRICK LAND REGISRAR MACHAKOS.........DEFENDANTS

R U L I N G

1.     This is an application by the Plaintiff (by chamber summons dated 22nd January 2010) for an order of temporary injunction to restrain the Defendants from “alienating, transferring or otherwise dealing with the suit properties” pending disposal of the suit.

2.     The application was brought under Order XXXIX, rules 1, 2, 2A (1) and 3of the old Civil Procedure Rules (the Rules). Section 3A of the Civil Procedure Act, Cap 21 (the Act) that saves the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court, has also been cited.

3.     The grounds for the application appearing on the face thereto are -

(i)That the Plaintiffs are the legal and registered owners of the two suit lands.

(ii)That the Defendants have interfered with the suit lands “by unlawfully conspiring to remove the names of the Plaintiffs from the titles and sabotaging and blocking transfers duly lodged at the District Lands Registry at Machakos”.

(iii)That the Defendants intend to unlawfully alienate and transfer the suit lands to third parties unknown to the Plaintiffs.

(iv)That the Plaintiffs stand to suffer irreparable damage.

4. The application is supported by an affidavit sworn by the 1st Plaintiff. To this affidavit are annexed various documents, including copies of title deeds to the two suit lands which are in the joint names of the Plaintiffs.

5. The 1st to 4th Defendants have opposed the application by replying affidavit filed on 3rd February 2010. The same is sworn by the 1st Defendant. Issues of jurisdiction of the court are raised. It is also pointed out that the suit is essentially about a dispute over the management of the 4th Defendant, a co-operative society.

6. The application was canvassed by way of written submissions. Those of the Plaintiffs were filed on 30th March 2010 while the 1st to 4th Defendants’ submissions were filed on 10th May 2010.  The 5th Defendant did not file any papers in respect to the application.

7. I have considered the submissions filed, including the cases cited.  I have also perused the plaint. No statement(s) of defence appear to have been filed by the Defendants.

8. It is apparent that the Plaintiffs were registered as proprietors of the suit lands in their capacities as the then officials of the 4th Defendant, and therefore as trustees of it. The 4th Defendant is a co-operative society duly registered under the Co-operative Societies Act. There appears to have arisen subsequently disputes over the management of the 4th Defendant which appears to have been resolved administratively by the Ministry of Co-operative Development. Such resolution appears to have included an administrative decision to bar the Plaintiffs from management of 4th Defendant, upon which the 1st 2nd and 3rd Defendants may have been elected into office as officials of the 4th Defendant.

9. At any rate, upon the material now before the court, I am satisfied that the present suit is essentially over the management of the 4th Defendant which has been disguised as a suit over property between the Plaintiffs and the 1st to 4th Defendants. I am not satisfied that this court is the correct forum to resolve that dispute. It is a dispute that ought to be resolved under the machinery established under the Co-operative Societies Act.

10. I am thus not satisfied that the Plaintiffs have demonstrated a prima faciecase with a probability of success, or that they stand to suffer irreparable loss.  The application by chamber summons dated 22nd January 2010 is entirely without merit.  It is hereby dismissed with costs to the 1st, 2nd, 3rd and 4th Defendants. Any interim injunction still in place is hereby lifted.  Those will be the orders of this court.

11. The delay in preparation of this ruling is deeply regretted.  It was caused by my poor state of health the last few years.  But thanks God I have now regained my full health.

DATED AT NAIROBI THIS 15TH DAY OF AUGUST 2012

H. P. G. WAWERU

JUDGE

COUNTERSIGNED AND DELIVERED AT MACHAKOS THIS 28TH DAY OF SEPTEMBER 2012

ASIKE-MAKHANDIA

……………………………..

JUDGE