Geofery Guchu Kimani v Wambui Kimani & Belasi Developers Limited [2021] KEELC 1645 (KLR)

REPUBLIC  OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 41 OF 2021

GEOFERY GUCHU KIMANI.........................................PLAINTIFF/ APPLICANT

VERSUS

WAMBUI KIMANI...............................................1ST DEFENDANT/REPONDENT

BELASI DEVELOPERS LIMITED.................2ND DEFENDANT/RESPONDENT

RULING

The matter for determination is the Notice of Motion Application dated 13th April 2021,by the Plaintiff/ Applicant seeking for orders that;

1. That the 2nd Defendant / Respondent be restrained by way of injunction  by itself , its employees , agents and or  any other person(s) claiming  its authority from  transferring , subdividing, committing acts,  of waste, developing , constructing  and or interfering  in any way with  Land Parcel  No. Ngenda / Kimunyu/2492 pending the hearing and determination of this suit.

2. That costs  of this suit be in the cause.

The Application is premised on the grounds that the 1st Defendant/Respondent was on 27th  June 2018,registered as the owner of L.R Ngenda/Kimunyu, which land was a subdivision of  Ngenda/ Kimunyu/587. That the  1st Defendant/ Respondent held the  said land in trust for herself  and the children of Kimani Kanungi ( Deceased)  and the Plaintiff/ Applicant being one of the beneficiaries  by virtue of being one of the said  children is entitled to a share of the said property. That the 1st Defendant/ Respondent  in disregard of the trust  bestowed upon her sold L.R 2492,to the 2nd  Defendant/ Respondent on 18th June 2018,  without informing the beneficiaries of the trust. Further, that the 1st Defendant/ Respondent  lacked the capacity  to transact with the suit property,  solelyand  as an absolute owner  as the said land was family land,  held in trust for the Plaintiff/ Applicant and the other beneficiaries. That the sale of L.R 2492, to the 2nd Defendant/Respondent was illegal and the Plaintiff/ Applicant stands to suffer great injustice.

In his Supporting Affidavit, Geoffrey   Guchu Kimani  averred that  the  1st Defendant/Respondent gave him a portion of 60 by 100 of L.R  2492, but the  same was yet to be transferred to his name, but sold the whole land to the 2nd Defendant/Respondent . That he undertook an official search  which showed that the  2nd Defendant/ Respondent is the registered owner of  whole of the suit property. That the 1st Defendant / Respondent informed him upon inquiry that  she had not sold the whole land,  but had left out a portion of it,  where she resides and his portion. That the title to the suit property should revert  back to the 1st Defendant/Respondent and registration of the same effected at the Gatundu Land registry .

He further averred that the trust should be determined and subdivision done  so that he is apportioned his share  of 60 by 100  as had been earlier allocated  to him by the 1st Defendant/ Respondent  being a legal beneficiary of  Kimani Kanungi  ( Deceased) . That it is in the interest  of Justice that the 2nd Defendant/ Respondent is restrained from  interfering with the suit property,  as he stands to suffer great injustice  if the orders sought are not granted.

The Application is opposed and the  2nd Defendant/ Respondent  filed a Replying Affidavit  sworn on  4th May 2021 by  Martin Mwangi, a Director of the 2nd Defendant . He averred that the 1st & 2nd Defendants/ Respondents entered into an agreement for sale and purchase of the suit property  sometime in June 2018. That during negotiations  for the sale of the suit property, the Plaintiff/ Applicant, 1st Defendant/Respondent and several  other family members  including the Plaintiff’s uncles were  involved on the negotiations. That consequently, the purchase  price was shared between  the Plaintiff/Applicant, the 1st Defendant/ Respondent and the Plaintiff’s two brothers..

That in early 2018, when the 2nd Defendant/ Respondent identified the suit property, it discovered that it was still  in the names of 2 brothers who were the Plaintiffs/ Applicant’s uncles. That it was agreed that the 2nd Defendant/ Respondent would provide funds  required to regularize ownership  of the land before the sale agreement were signed. Subsequently the funds were provided equivalent to Kshs.500,000/=  that were used solely for purposes of surveying  the land, demarcating  new boundaries  and payment of levies required to  process titles. That after the three titles were processed, the 2nd Defendant/ Respondent entered  into an agreement with the 1st  Defendant/Respondent  for  part of the land comprising  L.R 2492. That the Plaintiff/ Applicant was involved  as a witness in the original agreement  and parties later entered into another agreement to cater for the Plaintiff’s/ Applicant’s interests and to apportion his share of the purchase price.

Further that the Plaintiff/Applicant received a total of KShs.2,000,000/=  as his share of the purchase price for the suit land . That the title to the suit property  was closed for subdivision  on 31st  December  2010,  and that the Plaintiff/ Applicant  obtained copies  of the search and abstract  that conceal the true  position of the parcel of land,  especially entry No. 6 on the  abstract of title. That L.R 2492, does  not exist as the same having been mutated and subdivided into 15  plots being L.R  2826 to L.R 2840, and that the said subdivision now comprise a gated community  known as  Summer Green 2, with houses belong to  third parties, erected thereupon. Further, that the  smaller subdivisions of L.R  2492,  have been sold to third parties  and therefore  any order in respect of the same  would affect at least 14 other parties  without affording  them an opportunity to be heard.

That when the suit property  was subdivided, the 1st Defendant  and her family member agreed that  the 1st Defendant/ Respondent would get  a option of land known as L.R 2840, being a subdivision of the suit property . That on the ground, the  land is well demarcated  with the 1st  Defendant/Respondent occupying a  parcel of land and that is bigger  that what the Plaintiff/ Applicants is demanding through this suit. He averred that he has been advised by his  Advocates, which advice he believes to be true that  by lying to the Court and concealing material facts,  the Plaintiff/ Applicant has breached the principle that  he who comes to equity must do so with clean hands. That the Plaintiff/Applicant is seeking the help of the Court in re writing  the Contract on behalf of the parties . That there is no evidence that indicated that the land was trust land   and that there is no legal requirement that entitles the Plaintiff / Applicant to demand  that the 1st  Defendant/ Respondent seek  consent from him  to transact with property that is in her name

The 1st Defendant/Respondent  in opposing the Application filed  grounds of opposition dated 21st May 2021,and opposed the Application on the grounds that  the Plaintiff/ Applicant has not established a prima facie, case  with probability of success  and therefore not entitled to the injunctive orders sought. Further, that the orders sought by the Plaintiff/ Applicant if granted at an interlocutory stage amount to final determination of the suit and further binding parties who are not subject to this suit

That the Plaintiff/ Applicant approached the Court by concealment of facts and is advancing the case against the 1st Defendant/ Respondent without any legal or factual basis. Further that he has not proved that he has suffered any damages that cannot adequately be compensated, and there is no immediate danger proven that would warrant grant of the  injunctive orders sought  and granting orders  prohibiting subdivision would be granting orders in vain.

The Application was canvassed with by way of written submissions  which the Court has carefully read and considered, together with the instant  Application, the  Affidavit, the  annextures thereto and the relevant provisions of law and finds that the issue for determination is whether the Plaintiff/ Applicant has established the threshold for grant of Injunctive orders as sought .

As the Plaintiff/ Applicant has sought for injunctive orders, he is  either entitled to grant or denial of the same. For injunctive orders to be granted, the Applicant needed to establish the principles set out in the case of Giella…Vs…Cassman Brown Co. Ltd 1973 EA 358.  These are:-

a) The Applicant must establish that he has a prima facie case with probability of success.

b) That the Applicant will suffer irreparable loss which cannot be  adequately compensated in any way or by an award of damages.

c) When the Court is in doubt, to decide the case on a balance of convenience.

A prima-facie case was described in the Mrao Ltd… Vs… First American Bank of Kenya Ltd & 2 Others (2003) KLR 125, to mean;-

“In civil cases, it is a case which on the material presented to the Court or a tribunal properly directing itself will conclude that there  exist a right which has apparently been infringed by the opposite party as to call for a explanation or rebuttal from the latter”

Has the Plaintiff/ Applicant therefore established a prima facie case? The Plaintiff/ Applicant has contended that   the 1st Defendant/ Respondent was registered as the owner of  L.R Ngenda /Kimunyu / 2492, which was a subdivision of L.R 587 . That the said  property was  ancestral land and the same was to be held  in trustfor herself and  the beneficiaries of  the late  Kimani Kanungi. Though the Defendants / Respondents have contended that the  suit property was registered in the name of the  1st  Defendant/ Respondent,  and therefore she is  the absolute indefeasible  owner of the same, the Court is cautious enough not to make final determination on the said issue.  On the surface, the  fact that  in his Replying Affidavit sworn on  4th  May 2021, the Defendant/Respondent averred that there were negotiation  for the suit property between the Plaintiff, 1st Defendant and other family members  and the purchase price was shared between the brothers,  further the fact that the mother title was shared between brothers, the Court would not hesitates to note that prima facilely the suit property was trust land.

Therefore, the Plaintiff/ Applicant being a beneficiary of the  suit land had a right over the suit property. For a party to establish a prima facie case, the party must show that there is a right that has apparently been infringed so as to call for a rebuttal. The Plaintiff/ Applicant has averred that the 1st Defendant/ Respondent sold the suit property without his knowledge and he has produced in evidence a  Sale agreement. To controvert the said allegations, the   Defendants/ Respondents through an Addendum to the sale agreement dated 2019,in which the Plaintiff/ Applicant  was  to receive Kshs.  2,000,000/= to his bank details. In the said agreement, the Plaintiff/ Applicant has been listed as a  witness and his Identity Card Number indicated  and he has further signed the same.

After the Defendants/ Respondents   had filed the Replying Affidavit annexing the addendum to the sale agreement  and  copies of statement  indicating payments, the Plaintiff/ Applicant did not  controvert the same. He has neither denied being a party to the said agreement nor has he denied receiving the said monies. As noted above, for a prima facie case to be establish, there is need for evidence to be availed of the alleged breach of right. While the Plaintiff/ Applicant claims to not have been aware of the sale, there is evidence that has been availed, which evidence failed to controvert and this evidence was placed before Court  to show that he was aware of the sale. There is no right that was allegedly breached as the Plaintiff/ Applicant seems to have been aware of the sale of the land which is allegedly a trust land. In the case of Kenleb Cons Ltd vs New Gatitu Service Station Ltd another, (1990) eKLR   the court stated that;

“to succeed in an application for injunction, an applicant must not only make a full and frank disclosure of all relevant facts to the just determination of the application, but must also show he has a right legal or equitable, which requires protection by injunction.”

The Court finds and holds that apart from   failing to make full and frank disclose of relevant  facts, the Plaintiff/ Applicant has also  failed to show that there is a right that has apparently being infringed. Consequently, the Court finds and holds that the Plaintiff/ Applicant has failed to establish a prima facie case.

Having failed to prove a prima facie case, the Court  is thus not satisfied that the  Plaintiff/ Applicant has established  the threshold  for grant of injunctive orders . This is so as   for the Court to  grant Injunctive Orders , the Applicant must   establish all the three principles as the three principles are sequential in nature and failure to satisfy one automatically  collapses the others. See the case of Kenya Commercial Finance & Co. Ltd…Vs  Afraha Education Society (2001) 1EA 86, where the Court held that:-

“The sequence of granting an interlocutory injunction is firstly that an Applicant must show a prima-facie case with probability of success if this discretionary remedy will inure in his favour.  Secondly, that such an injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury; and thirdly where the court is in doubt, it will decide the application on a balance of convenience. See Giella..vs..Cassman Brown & Co. Ltd 1973 EA pg 360 Letter E.  The conditions are sequential so that the second condition can only be addressed if the first one is satisfied and when the court is in doubt then the third condition can be addressed.”

The Upshot of the foregoing is that the Court finds and holds that the Plaintiff/ Applicant has not established the threshold for grant of the injunctive reliefs sought. Consequently the Application dated 13th April 2021, is not merited and the same is dismissed with costs to the Defendants/ Respondents.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 8TH DAY OF OCTOBER, 2021.

L. GACHERU

JUDGE

Court Assistant – Lucy