DANIEL NZIOKA MAKAU v SYOKIMAU FARM LIMITED & NDUTA NDUNGU [2008] KEHC 3701 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 477 of 2007

DANIEL NZIOKA MAKAU ………………………….. PLAINTIFF

VERSUS

1. SYOKIMAU FARM LIMITED

2. NDUTA NDUNGU…………………….……….. DEFENDANTS

RULING

The Plaint herein claims the ownership of Plot No.20 registered as Land Reference No.12715/178 and any alienation thereof to any other party by the 1st Defendant be declared to be null and void.  The plaint also avers the fraud on the part of the 1st Defendant who was the Original Land Buying Company and the Plaintiff being its member, and the particulars of such fraud is enumerated in the plaint also.

The Plaintiff has along with the plaint, filed a Chamber Summons under Order XXXIX Rules 1 and 9 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.  It seeks to restrain the 2nd Defendant from cultivation of the suit land, constructing or continuing to build any houses thereon and from alienating the same pending hearing and determination of the suit.  It also seeks costs of the application.  The application is supported on the grounds mentioned thereon and on the affidavit in support sworn on 19th July, 2007 and supplementary affidavit sworn on 26th September, 2007 by the Plaintiff.

The Plaintiff has shown that he became a member of the 1st Defendant company and was given letter of allotment offering Plot No.20 in L.R. No.7149/11/R.  it was dated 17th October, 1983.  He has failed to show that he has paid Shs.1,500/- and/or fulfilled other conditions mentioned in the said letter (Ann. DNN 2 to the affidavit in support).  The receipt of Shs.500 (Ann. DNN 3) mentions payment to show plot No.247, which he alleges as a mistake.  It was meant for Plot No.20.  He has not mentioned in his affidavit in support that he has lodged a complaint against Edward Mbugua Kamau although he did mention his name and further stated that he did not know him.  It is only when the said fact was mentioned in the replying affidavit, he tried to explain the incident by stating that it was the police who summoned him, after he reported the matter of his inability to find records of his land at the lands office.  (Paragraph 12 of the supplementary affidavit).

The averments in his affidavit that plot No.20 is the suit land i.e. 12175/178 are supported only by his statements that the officers at the 1st Defendant’s office told him so without mentioning their names or positions held.  I do not have anything on record to satisfy me that plot No.20 is the land in question.  On the other hand I have the replying affidavit which shows the title deeds in the names of the 2nd Defendant and her late husband, in respect of LR.Nos.12715/1859, 12175/1860, 12175/1861, 12175/1862, 12175/1863 and 12175/1864 which were sub-divided from the original plot 12715/178/5.  The replying affidavit gives the history of the said leases, which are not denied by the plaintiff except to say that the signature on the note is not his.  The statement dated 17th October, 2005 made by the wife of the named Edward Mbugua to the police also mentions the same facts as those averred by the 2nd Defendant.

The crucial point before me is that the Plaintiff himself has stated that there is no record of any title deed in his name.  The letter of allotment relied upon by the Plaintiff is in the year 1983 and I am not shown the fulfillment of the conditions as regards payment etc which he has accepted on 19th November, 1984 almost after lapse of one year after the letter of allotment.  The next document shown by him is a receipt dated 11th April, 2002 to be shown Plot No.247.

On the other hand the 2nd Defendant has shown prima facie that she holds the Title Deeds of various plots and no allegation of fraud is made against her.

To state in brief, what is before me cannot be sufficient to enable me grant the order of injunction prayed by the Plaintiff.  In my considered view, the Plaintiff has not shown prima facie case with probability of success and/or balance of convenience.  He has not even demonstrated that he shall suffer damages which cannot be compensated with damages, as he himself has not followed the acquisition of his allotted land from 1984 upto 2002.

In the premises aforesaid, I dismiss the application with costs.

Dated and signed at Nairobi this 8th day of February, 2008.

K.H. RAWAL

JUDGE

8. 2.08