Felister Chitsaka Mwabaya v Habib Abu Mohamed & Franklin Gambo [2013] KEELC 88 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

LAND CASE NO. 65 OF 2013

FELISTER CHITSAKA MWABAYA........PLAINTIFF/APPLICANT

=VERSUS=

1. HABIB ABU MOHAMED

2. FRANKLIN GAMBO...............DEFENDANTS/RESPONDENTS

R U L I N G

The Notice of Motion before me is the one dated 10th April, 2013 in which the Plaintiff is seeking for the following reliefs:

An injunction, orders (sic) restraining the Defendants by themselves, their servants, agents, family member and any other person depriving interest from them either from entering, trespassing into the Plaintiff's property with developments standing on that Plot NO. KILIFI/JIMBA/85 and from fencing, evicting the Plaintiff with the children, putting new beacons and or dealing with the said suit property in any manner howsoever pending the hearing and determination of this application (sic).

The OCS Watamu police station does help in the execution to ensure compliance of these orders.

The Application was filed by the Plaintiff in person, thus the poor draftsmanship in the prayers being sought. However, the Application is seeking for injunctive orders pending the hearing of the suit.

The Application is supported by the Affidavit of the Plaintiff who has deponed that she is the legal wife of the 2nd Defendant and that she, together with the 2nd Defendant are the biological parents of five children.

According to the Plaintiff, she has been leaving on land parcel number Kilifi/Jimba/85 (the suit property) with the 2nd Defendant with their five children; that the 2nd Defendant is now attempting to sale the subject land to the 1st Defendant which would, if effected, completely alienate the said property and deny her and their children access to the property.

The 1st Defendant filed his Replying Affidavit on 8th May 2013 while the 2nd Defendant filed his Replying Affidavit on 25th April 2013.

The 1st Defendant deponed that it is not true, as alleged by the Plaintiff, that the suit property is owned by the 2nd Defendant.  According to the 1st Defendant, the suit property is registered in the name of Stephen Raphael Garama; that the 2nd Defendant is a squatter on the suit property and has erected a house thereon without the authority of the registered owner.

It is the 1st Defendant's further deposition that the registered proprietor of the suit property, Stephen Raphael Garama, sued the 2nd Defendant, with other people in HCCC No. 79 of 2006 for vacant possession; that the court delivered its Judgment on 15th April 2013 granting the Plaintiff therein the right to vacant possession and permanent injunction as against the Defendants.

Before the entry of the Judgment in HCCC No. 79 of 2006, the 1st Defendant has deponed that the 2nd Defendant, together with the Plaintiff asked him to purchase their house for Kshs.1,200,000 of which he paid Kshs.700,000 leaving a balance of Kshs.500,000 which was to be paid on or before 15th December 2000 when the Plaintiff and the 2nd Defendant were supposed to give vacant possession.

The Plaintiff finally deponed that the registered owner of the suit property agreed to sale to him part of Kilifi/Jimba/85 where the Plaintiff and the 2nd Defendant’s house stand for Kshs. 3 million which he duly paid; that the Plaintiff and the 2nd Defendant have no legal interest capable of being protected by this court in view of the Judgment of the court and that the Plaintiff's claim is meant to circumvent the Judgment of the court.

According to the 2nd Defendant's depositions, he agreed to sale the suit property to the 1st Defendant for Kshs.1,200,000; that the 1st Defendant paid him Kshs.200,000 leaving a balance of Kshs.1,000,000/= and that it was true that he is a squatter on the suit property, a fact which he never disclosed to the Plaintiff and their children.

The 2nd Defendant finally stated that the 1st Defendant has managed to pay him Kshs.700,000.

The Plaintiff filed her Supplementary Affidavit on 28th May 2013 and stated that the suit property is subject to her overriding interest in view of the provisions of section 28 (a) of the Land Registration Act No. 3 of 2012; that she did not consent to the sale of the suit property to the 1st Defendant and that up to now, no eviction process has been effected and that the said suit and Judgment does not extinguish in any way her interest in the suit property.

The parties agreed to dispose of the Application by way of written submissions which I have considered.

The condition for the granting of an interlocutory injunction were set out in the celebrated case of  Giella vas Cassaman Brown & Co. Ltd (1973) EA 358.  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 the Application on the balance of convenience.

The 2nd Defendant, who is the Plaintiff's husband, has admitted in his affidavit that he is a squatter on the suit property.  The registered proprietor of the property is one Stephen Raphael Garama.

Indeed, the registered proprietor of the suit property sued the Plaintiff's husband, the 2nd Defendant in Malindi HCCC No. 79 of 2006 and the court ordered for his eviction.

The court having held that the Plaintiff's husband should vacate the suit property, the Plaintiff and the 2nd Defendant became trespassers on the property. It is an act of magnanimity on the part of the 1st Defendant to have agreed to pay for the 2nd Defendant’s house notwithstanding the fact that the Court in HCCC No. 79 of 2006 never ordered for the compensation of the houses that the Defendants had put up on the suit property.

The 2nd Defendant has admitted having been paid Kshs.700,000 for the house that is standing on the suit property. The Plaintiff's Advocate has submitted that the Plaintiff's husband has been described in the sale agreement as the sole owner of the suit property; that Article 45(3) of the Constitution accords the Plaintiff equal rights to the suit property with the 2nd Defendant and that spousal rights are deemed to be overriding interests to registered land under section 28(a) of the Land Registration Act NO. 3 of 2012.

The suit property was registered in the name of Raphael Garama on 28th January 2000. The law applicable to the property is therefore the Registered Land Act, Cap 300 (now repealed) and not the Land Registration Act No. 3 of 2012.

Even if the law applicable in the instant case was the Land Registration Act, 2012, Section 28(a) of the said Act will not come to the aid of the Plaintiff because she has not, prima facie, established that either herself, or her husband have any proprietary interest in the suit property.  Indeed, as I have stated above, Meoli J, found as a fact that the Plaintiff's husband was a trespasser on the suit property viz-a-viz the registered proprietor.

It is trite law that in order for a right to property to be protected a party must establish a proprietary interest in the property.  The Constitution does not in itself create these rights.  The Constitution only protects proprietary interests acquired thorough the existing legal framework. The Applicant has not, prima facie, demonstrated her vested rights in the suit property.

Consequently, and for the reasons I have given above, I find and hold that the Plaintiff has not established that she has a prima facie case with chances of success.  I therefore dismiss the Plaintiff's Application dated 10th April 2013 with costs to the 1st Defendant.

Dated and Delivered in Malindi this 22nd day of August 2013

O. A. Angote

Judge