Beatrice Mbone Masera v Joseph Herman Mukasa Ssemuju [2014] KEHC 3029 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 124 OF 2014.

BEATRICE  MBONE MASERA ……………………… PLAINTIFF

VERSUS

JOSEPH HERMAN MUKASA  SSEMUJU ……….. DEFENDANT.

R U L I N G.

BEATRICE  MBONE  MASERA, hereinafter  referred  to as the Applicant, filed two applications dated 5th June, 2014  and 8th June, 2014 against  JOSEPH  HERMAN MUKASA SSEMUJU, hereinafter  referred  to as the Respondent.  In the application dated 5th June, 2014, the Applicant  inter alia prays for;

Temporary  injunction to restrain  the Respondent and  those claiming under him from trespassing on Bukhayo/Bugengi/11113.

Eviction of Respondent and those claiming under him from the said land.

An order  that ‘’Civil case number 167 of 2014  be brought  to this Honourable court for purposes of consolidating  it with this particular  matter.’’

The application  is based on the seven grounds marked (a) and  (g)  on the face of the application and the supporting affidavit of Masera Beatrice Mbone sworn  on 5th June, 2014.

In  the application dated  8th June, 2014, the Applicant prays for an order to commit the Respondent  to prison  for a period the court determines or for Respondent to be fined or both for disobeying the court order of 6th June, 2014 that  restrained him and those claiming from him from trespassing on the suit land. The application  is based on four grounds marked (1) to (4) on the face of the application and supporting affidavit of Masera Beatrice Mbone sworn on 8th June, 2014.

The  Respondent  opposed the two applications through the two affidavits in reply sworn on 13th June, 2014.

When the matter came up for hearing on 18th June, 2014,  both the Applicant and  Respondent  agreed that the  applications dated 5th and  8th June, 2014 be  heard at the same time. Both parties were in person and each made lengthy verbal submissions.

The court has considered the grounds on the two applications, the two supporting affidavits  and the two affidavits  in reply and the submission by both  Applicant and Respondent and find as follows;-

That the  Applicant became the registered proprietor of Bukhayo/Bugengi/11113 on 2nd May, 2014  as confirmed by the copy of the title deed and  certificate of official search filed with the plaint.

That Bukhayo/Bugengi/11113 is one  of the four parcels  subdivided  from Bukhayo/Bugengi/4735, then registered in the names of Grace Rael Mangala, as shown in the copy of the mutation form and certificate of official search dated  10. 4.2014 and 2. 5.2014 respectively.

That the  Applicant was stopped from taking possession  of the land on 5th and 6th May, 2014 by  the Respondent’s  agents from Unique Security Services. The Applicant subsequently locked the doors of the buildings on the premises and deployed officers from Rence Security Services but the  Respondent still insisted   that he had a right to the premises and hence the application dated 5th  June, 2014.

That when  the application dated 5th June, 2014  was placed before the court on 6th June, 2014, Tuiyott J,  certified   the application urgent and granted prayer 2 pending the interpartes  hearing.  The essence of prayer 2 was to restrain the Respondent  from trespassing  onto the premises.  It is important  to note that prayer 3 for eviction was not considered  at that stage though the Respondent  was still in  possession of the suit land.

That the order of 6th June, 2014  was extracted on the same date and according to the affidavit of service of Sebastian Tikolo sworn on 9th June, 2014,the process server  served it  on one Mulungwe Sansio who claimed to be a cousin to the Respondent. The said process server did not effect personal  service  on the Respondent as required before the application dated 8th June, 2014 seeking to punish the Respondent for failure to obey the order was filed.  Personal service on the Respondent was important  and proof of such service imperative. The contents of paragraphs 7 and 8  of Masera Beatrice Mbone’s  supporting  affidavit  sworn on 8th June, 2014  is also not evidence of personal service  on Respondent of the order dated 6th June, 2014. That  the Respondent position that  the order of 6th June, 2014  was not served upon him until on the  ‘’following Monday’’ 9th June, 2014 cannot therefore  be farfetched.  The Applicant  cannot fault  the Respondent for failing to obey  an order that had not been brought to his personal  attention through  a personal  service.

That the Respondent’s claim of right to a portion of Bukhayo/Bugengi/4735, from which the suit land was subdivided, is based on  the Land Sale agreement between him and another as purchasers, and Grace Rael Mangala as the vendor.  The subject  matter of the agreement was sale of 1 ½  acres at  Kshs.140,000/=. There has been several cases  around issues to do with land parcel Bukhayo/Bugengi/4735  but the less  the court  say about those cases at this stage the better for all parties.  It however  suffices to say that the Respondent  position  is that he has been in lawful possession of that portion of the land  under the said sale agreement and has not been lawfully  evicted and therefore cannot be a trespasser as alleged  by the Applicant,  to that portion of the land.

That a person in whose name a certificate of title is issued is protected under the Land Registration Act No. 3 of 2012. The specific provision is in section 26 (1)  which states:

‘’  26(1). The certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute  and indefeasible owner, subject  to the encumbrances, easements, restrictions and conditions  contained or endorsed in the certificate, and  the title of that proprietor shall not be subject to challenge, except-

(a) On the ground of fraud or misrepresentation to which the person is proved to be a party;                                  or

(b)  where the certificate of title has been  acquired illegally, unprocedurally, or                              through a corrupt scheme.’’

That flowing from the finding in (7) above the Applicant as the registered proprietor of Bukhayo/Bugengi/11113 would be  expected to enjoy the rights of a proprietor as set out under Section 25 of the Land Registration Act. The Applicant  could  however not enjoy those rights due to the acts of the Respondent and was prompted to file this suit under which the application under certificate of urgency dated 5th June, 2014 is based. It is apparent the Respondent  was in possession of a portion of Bukhayo/Bugengi/4735 claiming  some right  under the land sale agreement  dated 23rd July, 2007. The vendor under that agreement  appear to be the same person who subdivided  the land and transferred  a portion thereof to the Applicant herein.  If the  portion comprising  of Bukhayo/Bugengi/11113  includes  the same portion Respondent claims  under the land  sale agreement, then  it means the vendor, Grace  Rael Mangala disposed of that portion of the land  without sorting out the Respondent’s claim over the same and could  not therefore have given the  Applicant herein vacant possession.

9. That even though  under the principles set out in  the  celebrated  case  of Giela –vs- Cassman Brown co. ltd, a registered  proprietor  to a land would,  on the face of it, be  taken  to have  an indefeasible title and therefore a prima facie case with a probability of success,  this  is not an  appropriate case where temporary  injunction   should issue at this stage  as   the Respondent is in possession. There is also a possibility  that    the  other cases relating to  Bukhayo/Bugengi/4735  which are   pending  in the Lower court may be  consolidated with this case after the courts is properly moved and those other parties accorded a hearing in the matters.

10.     That the damages the Applicant is likely to suffer for not getting   the  injunction orders at this   stage cannot be said to be  irreparable as it can be assessed   into    monetary terms and  appropriate orders issued. The balance of  convenience also tilts to allowing the person who   has  been   in   possession by the time the subdivision of  Bukhayo/Bugengi/4735 and transfer of one of the portions arising  therefrom, Bukhayo/Bugengi/11113 to Applicant occurred.  The person reported to have been in possession           before  subdivision is the Respondent and  not the Applicant.

11.     That  the attempt by the Respondent  to introduce  other parties  to this suit by including  their names  in his affidavits  in reply is insufficient to make them  substantive  parties in this suit. The  court need to be moved formally for orders and appropriate notices served on the party or parties to be enjoined so as to           afford them  an opportunity to be heard. The  Respondent has not complied with the procedure and  the inclusion of those   names is of no legal consequence.

12.     That prayer (4)  in the application dated 5th June, 2014  is for case number 167 of 2014 to be consolidated  with this case. The  copy of an order issued in that case has  a total  of ten (10) parties. The Applicant did not exhibit an affidavit of service  to show  that all other eight (8)  parties  not included in the     current  case had been served with the application. The court  cannot therefore consider issuing such an order that has the possibility of affecting the other parties without giving those  other parties the notice of the application  and a chance  to be heard on the matter.

The court, for reasons  set out above, find no merit  in the two applications dated 5th and 6th June, 2014 and issue the following orders;-

That the application  dated 5th June, 2014  is dismissed.

That the exparte order issued on 6th June, 2014 is hereby vacated.

That the application dated 8th June, 2014 is dismissed.

That the costs in respect of the applications dated 5th and 8th June, 2014 will be costs in the cause.

It is so ordered

S. M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 17th  DAY OF JULY, 2014.

IN THE PRESENCE OF; M/S. Mmbone for Kigamia for plaintiff

JUDGE.