George Ngunga Mbyuki, Gideon Mutie Kikuvi, Charles Kyalo Nzuki, Steve Kangwana Muli, Stephen Kimanthi Muatha, Davies Mwanzia Muli, James Kilika, Fredrick Nduva Makuthi, Jairo Maosa Omwoyo, Wilson Akongo Anyira, Nicholas K. Mbevo, Peter Mwanzia, Josephat Kavisi, Alex Onduko, Ann Mbatha Muli, Mary Wanjiru Mutaaru, Ruth Mumo Mbithi, Janet Nthoki Kawewa & Judy Wahome v Calista Mowo Mathews, Kenneth Muema Masika, Alphonce Mutinda, Stephen Mutua Mbithi & Gramphorn Limited [2018] KEELC 1159 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. CASE NO. 57 OF 2010

GEORGE NGUNGA MBYUKI .............................1ST PLAINTIFF

GIDEON MUTIE KIKUVI....................................2ND PLAINTIFF

CHARLES KYALO NZUKI..................................3RD PLAINTIFF

STEVE KANGWANA MULI.................................4TH PLAINTIFF

STEPHEN KIMANTHI MUATHA.......................5TH PLAINTIFF

DAVIES MWANZIA MULI...................................6TH PLAINTIFF

JAMES KILIKA.....................................................7TH PLAINTIFF

FREDRICK NDUVA MAKUTHI.........................8TH PLAINTIFF

JAIRO MAOSA OMWOYO.................................9TH PLAINTIFF

WILSON AKONGO ANYIRA...........................10TH PLAINTIFF

NICHOLAS K. MBEVO.....................................11TH PLAINTIFF

PETER MWANZIA ............................................12TH PLAINTIFF

JOSEPHAT KAVISI............................................13TH PLAINTIFF

ALEX ONDUKO..................................................14TH PLAINTIFF

ANN MBATHA MULI.........................................15TH PLAINTIFF

MARY WANJIRU MUTAARU..........................16TH PLAINTIFF

RUTH MUMO MBITHI.....................................17TH PLAINTIFF

JANET NTHOKI KAWEWA.............................18TH PLAINTIFF

JUDY WAHOME ................................................19TH PLAINTIFF

VERSUS

CALISTA MOWO MATHEWS ........................1ST DEFENDANT

KENNETH MUEMA MASIKA ........................2ND DEFENDANT

ALPHONCE MUTINDA....................................3RD DEFENDANT

STEPHEN MUTUA MBITHI ...........................4TH DEFENDANT

GRAMPHORN LIMITED..................................5TH DEFENDANT

RULING

1. This Ruling is in respect to an Application dated 15th March, 2010 which has never been prosecuted since it was filed by the Plaintiffs. In the Application, the Plaintiffs are seeking for the following orders:

a. That the Defendants/Respondents, their agents and/or persons claiming under them be restrained jointly and severally from selling, dealing, pledging, disposal or in any other manner interfering with the Plaintiffs’ plot numbers 27, 25, 23, 17, 18, 9, 26, 30, 4 and 8, 28 & 29, 34, 2 and 6, 10, 1 and 5, 13, 3, 7 and 11, 33 and 20 & 22 all being portions of L.R. No. 12715/252 pending the hearing and determination of the suit herein.

b. Costs of this Application be in the cause.

2. According to the Affidavit of the 1st Plaintiff, the Plaintiffs purchased portions of land known as L.R. No. 12715/252 from the 4th Defendant; that they paid the entire purchase price; that they have built permanent structures on their respective plots and that the 1st and 2nd Defendants have allegedly resold the suit premises to the 5th Defendant.

3. According to the Plaintiffs, the 1st and 4th Defendants filed Machakos HCCC No. 159 of 2008 and deliberately failed to enjoin them; that the 1st Defendant sent his agents on the suit premises with the intention of executing the decision of the court and that an injunctive order should issue.

4. In his response, the 1st Defendant deponed that he is the registered owner of L.R. No. 12715/252; that he is not privy to the Agreements of Sale that the Plaintiffs entered into with the 4th Defendant in respect to the suit land; that he has never received money from the Plaintiffs and that he is also aware that neither the 2nd nor the 5th Defendants received any money from the Plaintiffs for the suit property.

5. It was the deposition of the 1st Defendant that the Plaintiffs trespassed on his land; that he authorized his agent, the 2nd Defendant, to sell the suit land to the 5th Defendant and that the court found in Machakos HCCC No. 159 of 2008 that the Plaintiffs had no claim over the suit property.

6. On his part, the 2nd Defendant deponed that the Plaintiffs had no right to built on the suit land; that he was directed by the 1st Defendant to sell the land to the Plaintiffs and that he sold the suit land to the 5th Defendant with the consent of the 1st Defendant.

7. The 5th Defendant’s Director deponed that the Plaintiffs have no claim against the 5th Defendant, and that the Plaintiffs had no right to build on the suit land in view of the decision of the court in Machakos HCCC No. 159 of 2008.

8. The 3rd Defendant deponed that he is an advocate of the High Court; that he acted for the 1st Defendant, through his Attorney, the 2nd Defendant and the 4th Defendant, in the sale of the suit land, where the 4th Defendant was purchasing the suit.

9. According to the 3rd Defendant, after paying a deposit of 10%, the 4th Defendant failed to complete the transaction as per the Agreement and that the 4th Defendant proceeded to file Machakos HCCC No. 159 of 2008 in which he sought for orders of specific performance; that he has never assured the Plaintiffs that he would get for them title documents and that the Plaintiffs do not have a prima facie case with chances of success.

10. On his part, the 4th Defendant deponed that he sold the portions of land in respect to the suit land to the Plaintiffs; that the Plaintiffs were to await the issuance of titles and that the Plaintiffs opted to develop the suit plots without his consent.

11. It was the 4th Defendant’s deposition that after suing the 1st Defendant in Machakos HCCC No. 159 of 2008, the Plaintiffs were at liberty to join in the suit and that the 1st and 2nd Defendants cannot purport to sell the suit land to the 5th Defendant when they had already sold to him the same land.

12. On 10th June, 2011, the 1st, 2nd and 5th Defendants filed an Application in which they sought for the deposit of security for costs pending the hearing and determination of the suit.  The 1st, 2nd and 5th Defendants also filed a Notice of Preliminary Objection dated 27th May, 2013 in which they averred that the suit is misconceived and violates the provisions of Section 3(3) of the Law of Contract Act.

13. Both the Plaintiffs’ advocate and the advocate for the 1st, 2nd and 5th Defendants filed their submissions which I have considered. I have also considered the authorities that were filed by the said advocates.

14. It is not in dispute that the Plaintiffs entered into Sale Agreements with the 4th Defendant for the purchase of various portions of land measuring 50feet by 100feet which were sub-divisions of L.R. No. 12715/252.  According to the copies of the Sale Agreements annexed on the Plaintiffs’ Supporting Affidavit, the 4th Defendant described himself as the owner of L.R. No. 12715/252 “having purchased the same from the registered owner thereof, Calista Mowo Mathews,” the 1st Defendant.

15. Indeed, the 4th Defendant has deponed in his Affidavit that he purchased the suit land from the Plaintiffs and that the Plaintiffs should not have developed the suit property before getting the deed plans for their respective plots.

16. The deposition of the 4th Defendant shows that the transaction between himself and the 1st Defendant did not go through. Indeed, the 4th Defendant sued the 1st Defendant in Machakos HCCC No. 159 of 2008, which suit is still pending.

17. The Ruling annexed on the 1st Defendant’s Affidavit in Machakos HCCC No. 159 of 2008 shows that the court declined to grant the 4th Defendant an order of injunction.  In the said Ruling, the court held as follows:

“In the present Application, the Defendant (the 1st Defendant herein) complains in his Supporting Affidavit that the Plaintiff and his licensees have commenced construction of permanent structures on the land.  To my mind, this is a good case where the orders of injunction should issue because without a formal transfer to him or an order of specific performance being issued, the Plaintiff (the 4th Defendant herein) had no business taking up the premises and/or inviting other parties to commence construction thereon.”

18. It is therefore obvious that the court in the above matter found that the 4th Defendant had no business selling the suit property to the Plaintiffs, or even allowing the Plaintiffs to develop the suit land. The 4th Defendant was injuncted from dealing with the suit land.

19. No reason has been given by the Plaintiffs why I should arrive at a different decision from the decision in Machakos HCCC No. 159 of 2008. Considering that the suit land was registered in favour of the 1st Defendant, the 4th Defendant had no interest known in law in the suit land. He could not have therefore legally transferred the suit land to the Plaintiffs or at all.

20. In the circumstances, I find that the Plaintiffs have not established a prima facie case with chances of success. However, considering that the Plaintiffs have shown that they bought the suit properties from the 4th Defendant, they had a right to file this suit.  They cannot be condemned to pay security for costs at this stage.  Consequently, the Application by the 1st, 2nd and 5th Defendants for security for costs cannot be allowed.

21. For those reasons, I dismiss the Plaintiff’s Application dated 15th March, 2010 and the Defendants’ Application dated 10th June, 2011.  The costs of the two Applications shall be in the cause. Considering that this suit was filed in the year 2010, the same should be fixed for hearing by the parties on a priority basis.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 19TH DAY OF OCTOBER, 2018.

O.A. ANGOTE

JUDGE