Iddi Shillingi Abdalla v Sauda Suleiman Ali & Edward K. Mulongo [2016] KEHC 5296 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ELC CIVIL SUIT NO. 302 OF 2015

IDDI SHILLINGI ABDALLA.......................................................PLAINTIFF/APPLICANT

-VERSUS-

SAUDA SULEIMAN ALI...................................................1ST DEFENDANT/RESPONDENT

EDWARD K. MULONGO..................................................2ND DEFENDANT/RESPONDENT

RULING

1. The application before Court is dated 13. 11. 2015 in which the applicant/plaintiff seeks the following orders ;

1) Spent

2) Spent

3) That the 2nd Defendant/Respondent by himself, his  agents and/or servants and/or employees and/or anybody  acting through him be restrained from trespassing and/or developing and/or do any activity on the house with land measuring approximately 51 ft by 76 ft at Majengo Mapya in Likoni pending hearing and determination of this suit.

4) That the OCS, Likoni Police Station be ordered to supervise and/or implementation of these orders.

5) The costs of this Application be awarded to the Applicant.

2. The application is supported by an affidavit and grounds listed on the face of the application.  It is the applicants' case that he bought the suit property from the 1st Respondent/Defendant.  The applicant annexed a copy of the sale agreement between the 1st Defendant and himself to buttress his claim.

3. The 1st defendant has not filed any document to oppose the application.  The 2nd Respondent/Defendant filed a detailed replying affidavit.  The 2nd respondent is also laying claim to the suit property having bought the same from Johnstone Muhindi Muteve who was husband to the 1st Defendant. The 2nd Respondent deposed that the vendor had placed a restriction through the area Chief hence the property was not available for sale by the 1st defendant.  In support of his claim, he annexed a sale agreement undated but executed on 4. 4.14, paying – in slip to an account held by the seller (Johnstone), a letter to the Chief by Mr Muhindi and letter of withdrawal and transfer agreement.

4. From the pleadings, it is apparent the 1st Defendant and Johnstone Muhindi were a couple but have since divorced.  The 1st Defendant sold the land  to the Applicant on 18th September 2013 while her husband sold to the 2nd Defendant on 4. 4.14 the same parcel of land.  Mr Johnstone Muhindi has not been joined in these proceedings although at one point his participation may be necessary.

5. The applicant submits that since his agreement was the first in time, he is entitled to the orders sought.  The 2nd defendant submits otherwise and argue that the vendor Johnstone Muhindi had placed a caveat on 5th July 2013 through the area Chief withdrawing it only on 6th May 2014 and on which date the said Johnstone transferred the property to the 2nd defendant.

6. The property does not have a title deed.  The 2nd Defendant argues the 1st Defendant did not have a good title to pass on to the applicant.  The 2nd defendant has not denied that he began development on the suit property.  Since both parties have paid monies for the property in dispute, it is imperative that any activity on the property be withheld for this Court to ascertain through hearing who owned the property between  the 1st defendant and Johnstone Muhindi or whether they owned the property in equal shares.  Secondly which of the sale a agreements should be upheld.

7. Because of the circumstances of this case, I am satisfied that there is a prima facie case put forth by the applicant which has a probability of succeeding . Consequently I find that there is merit in this motion and allow it in terms of prayer 3 and 4.  Each of the parties to bear their respective costs.

8. In order to preserve the suit property, the applicant is also directed not to undertake any activities on this property without leave of the Court that would prejudice the interests of 2nd Defendant.

Ruling   dated   and   delivered   at   Mombasa 13th   day   of   May   2016

A. OMOLLO

JUDGE