JACKSON ESITIKA v NEREAH ANDENYI,PERUS AMIMO,LEONARD INDIATSI & HENRY OTIENO ABWAO [2011] KEHC 789 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CIVIL SUIT NO. 161 OF 2008

JACKSON ESITIKA

(Suing As The Administrator Of The Estate Of

DORA OKISA MUNYAMA ……………………………..PLAINTIFF

VERSUS

NEREAH ANDENYI………….............................……………………….1ST DEFENDANT

PERUS AMIMO …………............................…………………………..2ND DEFENDANT

LEONARD INDIATSI ………............................………………………..3RD DEFENDANT

HENRY OTIENO ABWAO……...........................………………………4TH DEFENDANT

RULING

The plaintiff’s Chamber Summons dated 24th November 2010 prays inter alia for orders of injunction to restrain the defendants, their servants or agents and or representatives from disposing or in any way dealing with Land Parcel No. BUNYORE / EBUSIKHALE/2083 pending the hearing and determination of this suit.   The plaintiff has further prayed for costs.   The parties herein chose to rely on rival affidavits and the Skeleton submission.

From the pleadings before me it’s apparently clear that there is a blood relationship between the plaintiff and the 1, 2, and 3rd defendants.The 4th defendant for all intent and purposes is a purchaser.   The suit properly seemed to have had a history of litigation or quasi-litigation.   The same was a subject matter of Succession vide Kakamega Succession Case No. 146 of 1988. According to the grant attached as annextures N A 1 in the sworn replying affidavit of NEREA ANDENYI dated 14th January 2011 the following were recorded as the beneficiaries to the said parcel of land namely:-

(1)Mary Kusa Eduswe

(2)Nereah Andanyi Harbart

(3)Peris Awino Nyonje

(4)Dora Okwisa Munyama

(5)Adah Aono Mariko

(6)Susana Ayako

Subsequently, one Mary Kusa the beneficiary sold the said Land to one Bartholomew Amolo Esilaba but was later transferred back to the rightful beneficiaries.I have further had the occasion of perusing the green card attached to the further affidavit of Jackson Esitika sworn on 4th February 2011.   The same is full of entries, restrictions and cautions.   This obviously explains the value and the sensitivity of this suit property.

The question that begs to be answered therefore is how did the 4th defendant obtain the title and ownership of the suit property?.

According to the 1st defendant’s replying affidavit dated 14th January 2011 the sale and transfer was done lawfully through the relevant Land Control Board.   This is buttressed by the 4th defendant vide his affidavit dated 9th December 2010 and sworn on 8th December 2010. The said affidavit attaches the transfer of land form (R.L.1) and the consent of Luanda Land Control Board. The transfer aforetasted annexture HOA (a) is undated though it seems that the same was executed in June 2009. According to the entries in the green card by June 2009 entry number 9 Hannington Amukoa was the registered owner of the suit property.   This nevertheless need further clarification from the lands office. If however this be the case the 1st defendant could not have possibly transferred the suit land to the 4th defendant. Further the entries shows that the 1st defendant was to subdivide the land among her six (6) siblings.

It’s further contended by the 1st defendant that there was an understanding that the proceeds from the sale would be shared equally and that the plaintiff herein was given Kshs. 10,000/= pursuant to the sale of the suit land to the 4th defendant.   The 4th defendant on the other hand has deponed that the 1st defendant was  acting on behalf of the rest of her siblings.   This has never been proved in any way. Neither has the 1st defendant exhibited any agreement to the effect that the suit land was to be sold and its proceeds shared among the six (6) of them.

I have read both the  plaintiff’s and the defendants skeleton submission together with the rival authorities.

I am inclined to grant the plaintiff the prayers sought for the following reasons, namely

(i)The plaintiff has the right to protect the interest of her late mother who was among the 6th siblings entitled to the share of the suit land.

(ii)The suit land has had a history of controversy and for it to be protected a conservatory order of this court shall be necessary

(iii)There seemed not to have been a very clear dealings between the 1st and 4th defendants in respect to the sale and transfer of the suit property and despite the fact that the 2nd and 3rd defendants pleaded ignorance they may have benefited from the transaction.

(iv)There seems to have been fraud which needs further in depth investigation and this can only be done during the hearing where the services of the Land Registrar shall be required.

(v)There are no minutes of the Luanda Land Control Board and what the 4th defendant in conjunction with the 1st defendant have exhibited transfer and consent. The minutes are obviously relevant.

The celebrated case of Giella =vs= Cassaman Brown & Co Ltd 1973

(E.A.) 3586principles buttresses my conclusions; the plaintiff has

demonstrated a prima facie case, irreparable harm and loss may

be suffered by the Applicant in the event that an injunction is not

granted and finally the balance of convenience as it is now tilts in

favour of the plaintiff.

However, the plaintiff shall issue undertaking as to damages

within the next fourteen (14) days from the date of this Ruling.I

therefore allow the plaintiff’s application dated 24th March 2010 in

terms of prayer three (3) thereof and further he shall have the costs of

this application.

It is so ordered.

Dated, signed and delivered at Kisumu this 19th day of October 2011.

H. K. CHEMITEI

JUDGE

HKC/aao