Ethics and Anti-Corruption Commission v Saleh Chepkole,Titus Kipkemboi,Pembeni Limited,Liberty Assurance Company Limited & Wilson Gacanja [2019] KEELC 1649 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

CASE No. 242 OF 2018

ETHICS AND ANTI-CORRUPTION COMMISSION...............PLAINTIFF

VERSUS

SALEH CHEPKOLE............................................................1ST DEFENDANT

TITUS KIPKEMBOI............................................................2ND DEFENDANT

PEMBENI LIMITED............................................................3RD DEFENDANT

LIBERTY ASSURANCE COMPANY LIMITED.............4TH DEFENDANT

WILSON GACANJA............................................................5TH DEFENDANT

RULING

1. This ruling is in respect of two applications, both filed by the plaintiff: Notice of Motion dated 29th June 2018 and Notice of Motion dated 20th May 2019. The latter application seeks leave to further amend the plaint herein so as to plead that the 4th defendant is under receivership. The application is supported by an affidavit sworn by Jecinta Bungei, a forensic investigator employed by the plaintiff. She deposed that the 4th defendant was placed under statutory management by the Commissioner of Insurance. She annexed a report prepared in March 2004 by the statutory manager and added that on 21st January 2005 the Official Receiver was appointed liquidator of the company pursuant to an order made in Milimani Commercial Courts Winding Up Cause No. 29 of 2004, a copy of which she also annexed. I note that no response has been filed in respect of the application and that the Official Receiver filed Memorandum of Appearance in respect of the 4th defendant on20th May 2019. I will therefore allow amendment and make appropriate orders at the end of this ruling.

2. Notice of Motion dated 29th June 2018 seeks the following orders:

1. Spent.

2. Spent.

3. That the 4th defendant by himself, servants or any other person whosoever be restrained from alienating, selling, transferring, charging, developing,  leasing, sub-dividing, wasting, entering and remaining upon, or in any other way dealing with the parcel of land described as Nakuru Municipality Block 5/221, pending the hearing and final determination of this suit.

4. That costs of this application be provided for.

3. The application is also supported by an affidavit sworn by Jecinta Bungei. The 3rd and 4th defendants responded to the application through a replying affidavit sworn by Noreen Shariff Choge. Additionally, the plaintiff and the 3rd and 4th defendants filed submissions. I have carefully considered the application, the affidavits and the submissions.

4. The applicant seeks an interlocutory injunction. It must therefore satisfy the test in Giella –vs- Cassman Brown & Co. Ltd [1973] E.A 358. This entails establishing a prima facie case with a probability of success. Even if a prima facie case is established, an injunction will not issue if damages can be an adequate compensation. Finally, if the court is in doubt as to the answers to the above two tests then the court will determine the matter on a balance of convenience. All the three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicants are expected to surmount sequentially. If prima faciecase is not established, then irreparable injury and balance of convenience need no consideration. SeeNguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.

5. The applicant’s case is that the parcel of land known as Nakuru Municipality Block 5/221 (hereinafter the ‘suit property’) is government land which had been planned, reserved and used by the government for the construction of housing for public officers and on which stands 20 government houses meant for housing public servants which were built in the 1960s. According to the applicant, through letter of allotment dated 5th August 1994 the 5th defendant as Commissioner of Lands purported to allocate the suit property to the 1st and 2nd defendants. Subsequently, a lease was prepared and registered on 20th November 1998. On that same date, the property was transferred to the 3rd defendant and a certificate of lease issued. Later on 14th February 2003, the property was transferred to the 4th defendant and a certificate of lease issued. The applicant further contends that the transfer to the 3rd and 4th defendants was at the behest of and due to undue influence of one Jim Choge who was associated with the two companies. Jim Choge passed away on 27th February 2008 and his family filed Nairobi Succession Cause No. 934 of 2008 in respect of his estate. Notwithstanding the fact that the suit property was not part of his estate, the administrators obtained an order in the said succession cause that the Chief Land Registrar does issue a provisional title in respect of the suit property. According to the applicant the suit property was not available for alienation since it had government buildings thereon which were duly occupied by public servants. As such, the allotment to the 1st and 2nd defendants and subsequent transfers to the 3rd and 4th defendants are all null and void.

6. The 3rd and 4th defendants do not deny that as at the date of the allotment, the suit property was government land with government houses on it occupied by public servants. They however maintain that they purchased the property for valuable consideration from civil servants upon allocation and that proper procedure was followed in acquiring the suit property.

7. Additionally, they argued that this case is an abuse of process and is res judicata in view of judgment in Nairobi Judicial Review Application No. 570 of 2017 and orders in High Court Succession Cause No. 934 of 2008 (Nairobi).They therefore argued that the applicant has not satisfied the test for granting an interlocutory injunction.

8. It is not for me at this stage of the case, to determine whether or not the allocation to the 1st and 2nd defendants and subsequent transfers to the 3rd and 4th defendants were valid and lawful. That is the province of the trial court. Suffice it however to state there is no dispute that the suit property was prior to allocation, government land on which stood government houses with civil servants in occupation. If the applicant succeeds at trial, there is a likelihood that the court would revert the suit property to the government.

9. Regarding the issue of res judicata, I remind myself of Section 7of the Civil Procedure Act which provides:

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court..

10. In John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR the Court of Appeal stated thus:

…. the ingredients of res judicata are firstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally…

11. I note that the proceedings in High Court Succession Cause No. 934 of 2008 (Nairobi)were under the Law of Succession Act while those in Nairobi Judicial Review Application No. 570 of 2017were brought to enforce, by way of mandamus, an order issued on 2nd March 2016 in the former case. The issue of validity of the allotment of the suit property and ensuing titles was never determined. Res judicata is therefore not applicable herein.

12. The applicant has established a prima facie case that calls for the preservation of the suit property pending hearing and determination of the suit. The court has a duty to ensure that litigation herein, which is in the public interest, is not rendered an academic exercise in the long run. Damages cannot be an adequate remedy in the circumstances of this case. I will therefore grant an injunction aimed purely at preserving the suit property but not causing an eviction. I will also extend the life of the order of inhibition which was made on 24th July 2018 when the application came up under certificate of urgency.

13. I therefore make the following orders:

a)  I grant an injunction restraining  the 4th defendant by  itself, servants or agents from alienating, selling, transferring, charging, developing,  leasing, sub-dividing, wasting  or in any other way dealing with the parcel of land described as Nakuru Municipality Block 5/221 pending the hearing and final determination of this suit.

b) The inhibition which had been ordered at the ex parte stage shall also remain in force pending hearing and determination of this suit.

c) Costs to the plaintiff.

14. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 30th day of September 2019.

D. O. OHUNGO

JUDGE

In the presence of:

Ms Maina for the plaintiff/applicant

No appearance for the 1st defendant

No appearance for the 2nd defendant

No appearance for the 3rd defendant

No appearance for the 4th defendant

Mr Mburu holding brief for Mr Kahari for the 5th defendant

Court Assistants: Beatrice & Lotkomoi