Daniel Gitau Kuria v Muthoni Mbugua Ndumo, Simon Kimani Mbugua, Ann Waithera Kamau & Dennis Kamau Mwaura [2021] KEELC 2588 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC APPEAL NO.29 OF 2020

DANIEL GITAU KURIA.....................................APPELLANT/APPLICANT

VERSUS

MUTHONI MBUGUA NDUMO......................................1ST RESPONDENT

SIMON KIMANI MBUGUA...........................................2ND RESPONDENT

ANN WAITHERA KAMAU............................................3RD RESPONDENT

DENNIS KAMAU MWAURA........................................4TH RESPONDENT

RULING

The matter for determination is the Notice of Motion Application dated 14th August 2020, brought under Order 46 Rule 4 (1) (2) (3)of the Civil Procedure Rules, Sections 1A & 3A of the Civil Procedure Actbought by the Appellant/Applicant for Orders that;

1. Spent

2. This Honorable Court be pleased to order the registration of a Prohibition Order on land parcel number Ruiru/Ruiru East Block /5404, until the hearing and determination of this Appeal.

3. Costs be borne by the Defendants.

The Application is supported by the Supporting Affidavit of Daniel Gitau Kuria, who averred that a Judgement was delivered on 29th May 2020, inThika CMCC No. 16 of 2015, and having been aggrieved by the said Judgement, he has preferred an Appeal herein to protect his interest over suit property being LR No. Ruiru/Ruiru East Block/5404,and recovery ofKshs.550,000/=.That the suit property has already been transferred in favor of the 1st Respondent.

He further averred that he believes that the trial magistrate erred in his Judgement as he should have awarded him his professional charges ofKshs.550,000/=.That he is advised by his Advocates which advice he believes to be true that unless aProhibitory Orderis registered on the suit property, the Appeal is likely to be rendered nugatory.

The Application is opposed vide the 1st Respondent’s Replying Affidavit filed on 8th September 2020,by Muthomi Mbugua Ndumo with authority from the 2nd Respondent, who averred that Kshs.550,000/= should not be used as a reason and ground for registering an inhibition. That the Orders sought herein are baseless as the Court has the powers to cancel any title illegally transferred and the same way if the Appellant’s Appeal is successful.

Parties were directed to file Written Submissions to canvass the instant Application and the Appellant/Applicant through theLaw Firm of Karanja Kangiri & Co. Advocates, filed his written submissions dated 29th October 2020, while the 1st Respondent’s submissions are dated 26th March 2021, filed through the Law Firm of M. M Rungare & Co. Advocates.The 3rd and 4th Respondents did not file any pleadings with regards to the Appellant/Applicant’s Application.

The Court has carefully considered the instant Application, the pleadings in general and the rival written submissions filed and renders itself as follows;

The issue for determination is;

· Whether the Applicant/Appellant has satisfied the conditions for grant of a Prohibitory Order.

Whether the Applicant/Appellant has satisfied the conditions for grant of a Prohibitory Order.

The Applicant/Appellant has a sought for an Order of Prohibition under Section 68 of the Land Registration Act, in respect of the suit property LR. No.Ruiru/Ruiru East Block /5404. Section 68(1) of the Land Registration Act provides:-

“The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.”

Further in the case of Dorcas Muthoni & 2 Others…Vs…Michael Ireri Ngari (2016)eKLR, the Court held that:-

“An order of inhibition issued under Section 68 of the Land Registration Actis similar to an order of prohibitory injunction which bars the registered owner of property under dispute from registering any transaction over the said property until further orders or until the suit in which the said property is a subject is disposed off. The Court issuing such an order must be satisfied that the applicant has good grounds to warrant the issuance of such an order because, like an interlocutory injunction, such an order preserves the property in dispute pending trial”.

It is evident that on Order of Inhibition is similar to prohibitory injunction. The lower Court decision delivered on 29th May 2020, found in favor of the Plaintiffs and stated that “even if the Plaintiff owed the 1st Defendant the sum of Kshs.550,000/= for his survey services, he more than compensated himself as the suit land was sold for a whopping Kshs.4,200,000/=” the Applicant/Appellant has not placed evidence before court either in his annexures or otherwise to convince the court to issue Conservatory orders neither has he placed any grounds to warrant such orders.

The Applicant/Appellant having a sought for Prohibitory Orders, have to establish good grounds. Such orders prevent any further dealings with the subject property so that a decree for its attachment or delivery, as the case may be, is not rendered nugatory.

The Court finds that the Applicants/Appellant herein has no good reasons to seek for prohibitory orders against the 1st Respondent since whatever he paid in the alleged process of survey of Kshs.550,000/= is recoverable as a Civil debt, without affecting the 1st Respondent right to enjoy the fruits of his Judgement.

Consequently, at this juncture, the Court will not determine whether the Appeal is merited or not, as it is not amongst the prayers sought in the Applicant’s/Appellant’s Application. Further, this Court finds no reasons to issue any such other orders or directions apart from finding that the instant Application is not merited. It is trite that the Court cannot act in vain. Similarly, its orders cannot be issued in vain.

Having now carefully considered the instant Notice of Motion application dated 14th August 2020, the Court finds it not merited and the same is dismissed entirely with costs to the 1st Respondent.

Let the Appellant strive to have the Appeal heard expeditiously. For the above reason, the Appellant is directed to file the Record of Appeal within a period of 30 days, from the date hereof and have the matter placed before the Judge for either admission on summary dismissal of the said Appeal as provided by section 79(B) of the Civil Procedure Act.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 15TH DAY OF JULY 2021.

L. GACHERU

JUDGE

15/7/2021

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting Court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consents. They have waived compliance with Order 21 Rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

M/s Kanja holding brief for Mr. Karanja for the Appellant/Applicant

No appearance for the 1st Respondent

No appearance for the 2nd Respondent

No appearance for the 3rd Respondent

No appearance for the 4th Respondent

L. GACHERU

JUDGE

15/7/2021