Arafat Abdul Latif v Abdul Aziz Juma, Juma Abdul Aziz Juma, Asha Abdu Aziz & Hafis Abdul Aziz Juma [2015] KEHC 1254 (KLR)

REPUBLIC  OF KENYA

IN THE HIGH COURT  OF KENYA AT MERU

ELC  NO 99 OF 2015

ARAFAT ABDUL LATIF.................................................................PLAINTIFF

VERSUS

ABDUL  AZIZ  JUMA ......................................................1ST DEFENDANT

JUMA ABDUL AZIZ JUMA .............................................2ND DEFENDANT

ASHA ABDU AZIZ ...........................................................3RD DEFENDANT

HAFIS ABDUL AZIZ JUMA.............................................4TH DEFENDANT

I N T E R I M   R U L I N G

This application is dated 22/10/15 and seeks orders that:-

1. This application be certified as urgent and the same be directed to proceed to hearing immediately.

2. This Honourable Court be pleased to order that the Defendants/ Respondent , their servants and/or agents or otherwise howsoever be restrained  from dealing in any way whatsoever with MERU MUNICIPALITY BLOCK 11/67 pending the hearing and determination of this application.

3. This Honourable Court be pleased to order that the Defendants/Respondents, their servants and /or agents or otherwise howsoever be restrained from dealing in any way whatsoever with  MERU MUNICIPALITY BLOCK 11/67 pending the hearing and determination of this suit.

4. This Honourable Court be pleased  to order that the Defendants deposit the proceeds of rent from the whole of MERU MUNICIPALITY BLOCK 11/67 into this Honourable Court pending hearing and determination of this application.

5. This Honourable Court be pleased to order that the Defendants/ Respondents deposit  the proceeds of rent  from the whole of MERU MUNICIPALITY BLOCK 11/67 into  this Honourable Court pending hearing and determination of this suit.

6. This Honourable Court do issue an order restraining  the Defendants/Respondents from interfering, harassing and/or threatening the Plaintiff/Applicant from quiet and peaceful enjoyment of the property especially with regard to the Plaintiff/Applicant’s shop situated at  the MERU MUNICIPALITY BLOCK 11/67  pending hearing and determination of this suit.

7. This Honourable Court be pleased to order that the Registrar at the Lands  Office do furnish the plaintiff/Applicant with the transfer documents relating to the entry of the 2nd , 3rd and 4th Defendants/ Respondents as proprietors  into the title of MERU MUNICIPALITY BLOCK 11/67.

8. This Honourable Court be pleased to order that the Defendants/ Respondents provide the accounts relating to the proceeds of rent from MERU MUNICIPALITY BLOCK 11/67 commencing from 1st November, 2013.

9. The costs of this application be provided for.

It is supported by the affidavit of ARAFAT ABDUL LATIF and has the following grounds:-

1. The Plaintiff/Applicant is the legal Personal Representative of the Estate of the late ABDUL  LATIF JUMA vide Grant of Letters of Administration Intestate issued on 10th June, 2014 in  MERU HIGH COURT SUCCESSION CAUSE NO 111 OF 2014.

2. That pursuant to the Death of the said  ABDUL LATIF JUMA, the Plaintiff obtained Grant of Letters of Administration vide MERU HIGH COURT SUCCESSION CAUSE NO 111 OF 2014  and  was made the legal representative of the estate of ABDUL LATIF JUMA (Deceased) and  MERU MUNICIPALITY BLOCK 11/67 falls under the said Estate.

3. The 1st Defendant and ABDUL LATIF JUMA (Deceased ) were registered as Tenants in Common with  50% share  each on MERU  MUNICIPALITY BLOCK 11/67 sometimes in the year 1996.

4. The 1st Defendant approached the Deceased  sometimes in the year 2010 with a proposal to have his children, the 2nd , 3rd and 4th Defendants/ Respondents herein registered as joint  owners on the 1st Defendant’s 50% share  of MERU  MUNICIPALITY BLOCK 11/67 and the deceased agreed.

5. The Defendants/Respondents  illegally and fraudulently  caused their names to be registered as joint owners in the title of the whole instead of the 50% share belonging to the  1st Defendant of all that  parcel of land Known as MERU MUNICIPALITY BLOCK 11/67 initially owned by the ABDUL LATIF JUMA (Deceased)  and the 1st Defendant as Tenants in common.

6. The Plaintiff has severally visited the Lands Office Registry in Meru  County to try and peruse the Property file for MERU MUNICIPALITY BLOCK  11/67  to establish the contents of the transactions leading to the entry of the 2nd, 3rd and 4th Defendants/Respondents  in the Title but has been informed that the transfer documents were not in the file.

7. The Defendants/Respondents have commenced construction activities on the property without regard for the 50% share that rightfully belongs to the Plaintiff/Applicant and the Plaintiff stands to suffer irreparable damages due to the construction.

8. The Defendants/Respondents have sought to dispossess and/or disinherit the Plaintiff off the share owned by the Deceased by producing the Title to MERU MUNICIPALITY BLOCK 11/67 with entries of their names together  with the Deceased  as joint tenants whereas  the Plaintiff believes  that  his father, the Deceased did not transfer his 50% share to joint tenancy with the Defendants/Respondents.

9. That the Plaintiff lodged a caution against MERU MUNICIPALITY BLOCK 11/67 at  the Lands Registry in Meru County but the Defendants/Respondents have moved to have it removed by the Registrar.

10. That Defendants/Respondents have issued  notice to the Plaintiff to pay rent or vacate from a shop which he has been operating on the said property since the time the Deceased was alive and even after the Deceased’s death.

11. The Defendants/Respondents have further  issued notice to pay rent or vacate to the tenants  that were  paying rent to the Deceased before his death and have been receiving this rent forcefully  from the  said tenants since the death of the  deceased hence denying the Plaintiff a source of livelihood and unjustly  enriching themselves.

12. The Defendants/Respondent have never allowed the Plaintiff/Applicant access to the rent amount of Kshs. 103,000. 00 which was payable to the Deceased before his death.

13. If the order sought pending determination of this application is not granted there is grave danger that the Plaintiff  will be thrown out of his shop which  is his only source of livelihood Deceased, his father supported him from using the rent. This will cause great harm and irreparable loss to the Plaintiff as the success of the Plaintiff in this suit will be rendered nugatory which cannot be compensated by costs.

On 3/10/2015, the parties consented to the grant of prayer 7 in the application.  In the Circumstances, prayer 7 is granted.  I also order as follows:-

1. In the Interests of Justice and  in terms of Section 63, CPA, an order of Inhibition be registered against Plot No. MERU MUNICIPALITY BLOCK 11/67 pending the hearing and determination of this application.

2. Parties to appear before the DR for directions, by consent, On 3/12/2015.

It is so ordered.

Delivered in Open Court at Meru this 3rd day of November, 2015  in the presence of:

CC: Okaalo for Plaintiff/Applicant

Mutuma for Defendants.

P. M. NJOROGE

JUDGE