Charles Edward Gikera v Lo - Orinyia Ole Tunke & 33 others [2017] KEHC 2955 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAJIADO

ELC CASE NO. 243 OF 2017

(formerly Nairobi ELC No. 958 of 2015)

CHARLES EDWARD GIKERA...........................................PLAINTIFF

VERSUS

LO - ORINYIA OLE TUNKE & 33 OTHERS.................DEFENDANT

RULING

The application before court is the Plaintiff's Notice of Motion dated 1st October, 2015 brought pursuant to Section 1A, 1B, 3A and 63 (e) of the Civil Procedure Act and Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules and all enabling provisions of the law.

The application is premised on the following grounds which in summary are that the Plaintiff is  lawfully entitled to all that parcel of land originally known as KIMANA/TIKONDO/ 567 hereinafter referred to as the 'suit land'. The 1st Defendant colluded with the 12th Defendant to unlawfully deprive the Plaintiff of his lawful ownership of the suit land by fraudulently subdividing it into twenty four (24) plots which he sold to third parties which are 2nd to 11th as well as 13th to 16th Defendants herein. The purported transfer was fraudulent and subdivisions illegal and the Plaintiff stands to suffer irreparable harm and damage unless the Defendants are restrained by the Court.

The application is supported by the affidavit of CHARLES EDWARD GIKERA who is the Plaintiff herein where he deposes that he is the biological son of the late MARGARET MUTHONI GIKERA who passed away on 16th August, 2000. The deceased was the proprietor of the suit land having been issued with a land certificate on 4th November, 1978. He avers that pursuant to a Certificate for Confirmation of Grant vide Nakuru Succession Cause No. 225 of 2001, the suit land devolved to him as a beneficiary. He states that in 2012 the 1st Defendant illegally, fraudulently and in collusion with the 12th Defendant purportedly subdivided the suit land into plots and unlawfully caused the registration of new parcel numbers to wit LOITOKTOK/KIMANA - TIKONDO/5439, 5440, 5441, 5442, 5443, 5444, 5445, 5446, 5447, 5448, 5449, 5450, 5451, 5452, 5453, 5454, 5455, 5456, 5457, 5458, 7149, 7150, 7151 and 7152 which he sold to the 2nd to 11th as well as 13th  to 16th Defendants who bought them without conducting due diligence. He maintains  that he reported the matter to  the DCIO Loitoktok vide OB Number 14/11/6/2015 and the same is subject to investigation. He claims the 12th Defendant fraudulently purported to register the suit land in the 1st Defendant's name and conspired with him to change the title deed to the following plots LOITOKTOK/KIMANA - TIKONDO/5439, 5440, 5441, 5442, 5443, 5444, 5445, 5446, 5447, 5448, 5449, 5450, 5451, 5452, 5453, 5454, 5455, 5456, 5457, 5458, 7149, 7150, 7151 and 7152.  He asserts that he has in his possession the original document of title for the suit land in the name of MARGARET MUTHONI GIKERA (deceased).

The 2nd to 11th as well as 13th to 16th Defendants opposed the application and gave authority to FRANCIS MWANTHI KIOKO the 11th Defendant  herein to swear an affidavit on their behalf where he deposed that in 2012 together with the aforementioned Defendants entered into Sale Agreements with the 1st Defendant who was registered proprietor of land parcels numbers LOITOKTOK/KIMANA - TIKONDO/5439, 5440, 5441, 5442, 5443, 5444, 5445, 5446, 5447, 5448, 5449, 5450, 5451, 5452, 5453, 5455, 5456, 5457, 5458, 7149, 7150, 7151 and 7152. He states that they undertook due diligence and searches for the respective parcels of the aforementioned land which confirmed that  the 1st Defendant was indeed the owner of the parcels of land. He maintains after paying the agreed purchase price  pursuant to the Sale Agreements for the respective plots, the 1st Defendant signed over  the transfer forms to them and they were subsequently registered as proprietors of the said parcels. He affirms together with his co defendants, they were issued with title deeds for their respective parcels of land, have subsequently settled thereon and built houses. He maintains together with his co Defendants, dealt with the proprietor of the abovementioned parcels of land, undertook due diligence and did not engage in any fraudulent activities as alleged by the Plaintiff. He denies together with the buyers that they are not parties to any  fraud and have not trespassed on the Plaintiff's parcel of land as they are properly registered as proprietors. He asserts that they are bona fide purchasers without notice and registered proprietors of the suit land who ought to be protected by the Constitution and the Law. He swears they have carried out developments on their respective parcels of land and have never been summoned by the Police as parties to any investigations relating to the suit land.

Both parties filed written submissions which I have considered.

Analysis and Determination

Upon perusal of the notice of motion dated 1st October, 2015 including the respective affidavits filed herein plus the annexures, I find that the only issue in contention at this juncture is whether the Plaintiff is entitled to the injunctive orders sought.

The principles for granting of temporary injunctions were settled in the case of Giella Vs. Cassman Brown & Co. Ltd (1973) EA 358as follows:

"First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience."

Bearing this principle in mind, it is upon the honourable court to interrogate whether the applicant has made out a prima facie case with a probability of success at the trial.

On the first principle as to whether the Plaintiff has established a prima facie case, I note the Plaintiff is a beneficiary of the estate of MARGARET MUTHONI GIKERA (deceased) who was the proprietor of the suit land having been issued with a land certificate on 4th November, 1978. The Plaintiff annexed a copy of the Certificate of title as 'CEG 1' and a Certificate for Confirmation of Grant dated 21st November, 2014 as 'CEG 2' to prove his claim. I note from the Extract of the Green Card annexure 'CEG 3', the suit land was registered in the name of the deceased MARGARET MUTHONI GIKERA from 4th November, 1978  and on 19th December, 2011 the title Deed was re issued to an unknown person and later on 17th January, 2012 to the 1st Defendant who got his title on 26th January, 2012  which title deed was closed on 3rd September, 2013 upon sub division. I further note  that the suit land was purportedly subdivided and registered in to new parcel numbers to wit LOITOKTOK/KIMANA - TIKONDO/5439, 5440, 5441, 5442, 5443, 5444, 5445, 5446, 5447, 5448, 5449, 5450, 5451, 5452, 5453, 5454, 5455, 5456, 5457, 5458, 7149, 7150, 7151 and 7152 which the 1st Defendant sold to the 2nd to 11th as well as 13th  to 16th Defendants. Looking at the documents annexed to the respective affidavits and the evidence presented, it is clear that the claim laid by the Plaintiff over the suit land is not baseless. Although it is curious as to how the 1st Defendant got registered as the owner of the suit land and subsequently subdivided it into plots which he sold to the 2nd to 11th as well as 13th to 16th Defendants who later got titles. I however note that the 1st Defendant who was the vendor has failed to enter an appearance nor file a response, and this is also with the 12th Defendant who was the Land Registrar Kajiado who registered the titles. However, these are issues best heard and determined at a full trial. I hence find that the Plaintiff has indeed demonstrated a prima facie case with probability of success.

On the second principle as to whether the Plaintiff will suffer irreparable loss which cannot be compensated by way of damages. The Plaintiff, 2nd - 11th as well as 13 to 16th Defendants claim ownership of the suit land  which was subdivided into smaller parcels and registered in the names of the 2nd - 11th as well as 13 to 16th Defendants who claim  to have invested on it. The Plaintiff also alleges fraud against the Defendants and claim except for the 12th Defendant, they have all fraudulently got registered as owners of parcels of land which were subsequent subdivisions of the suit land and this has interfered with his rights over the said land. I further find that the Plaintiff will indeed suffer irreparable loss which cannot be compensated by way of damages. As to the allegations of fraud, I am persuaded by the  case of UCB Vs Mukoome Agencies (1982) HCB22 where the learned Judge stated as follows: 'that where fraud is alleged, the party alleging it must be given an opportunity to prove it and that substantial allegation of fraud raises a triable issue entitling the defendant leave to defend the suit'. I find that it would be pertinent if the Plaintiff and the 2nd to 11th Defendants as well as 13th to 16th Defendants are  granted an opportunity to be heard to enable the court make a determination on the ownership of the suit land.

On the question of balance of convenience, from the evidence presented by the parties, I am not in doubt that if the title to the property is not preserved, it may be wasted away.

Since both the Plaintiff and the 2nd to 11th Defendants as well as 13th to 16th Defendants are staking claim over the suit land, with the sanctity of the title being in dispute, I find that  these are issues best determined at a full trial, I will decline to grant the orders as sought but will proceed to make the following order:

An inhibition order be and hereby registered by the Land Registrar Kajiado as against land parcel number KIMANA/TIKONDO/ 567 including all the resultant subdivisions namely LOITOKTOK/KIMANA - TIKONDO/5439, 5440, 5441, 5442, 5443, 5444, 5445, 5446, 5447, 5448, 5449, 5450, 5451, 5452, 5453, 5454, 5455, 5456, 5457, 5458, 7149, 7150, 7151 and 7152 of any dealings, lease or charge pending the hearing and determination of the suit.

The costs will be in the cause.

The parties are urged to comply with Order 11 and set the suit down for hearing as soon as possible.

Dated signed and delivered in open court at Kajiado this 9th day of October, 2017.

CHRISTINE OCHIENG

JUDGE

REPRESENTATION

Mwangi holding brief for Lesinko for 13th to 34th defendants

No appearance for plaintiff

Court assistant Mpoye