Jane Njoki Kihara v Joseph Kihara Gichui [2014] KEELC 519 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND DIVISION

ELC.  NO. 753  OF 2012

JANE NJOKI KIHARA…………………...…PLAINTIFF/APPLICANT

VERSUS

JOSEPH KIHARA GICHUI …………. DEFENDANT/RESPONDENT

RULING

Coming before me for determination is the Notice of Motion dated 25th October 2012 in which the Plaintiff/Applicant seeks for orders of temporary injunction to be issued by this court restraining the Respondents from disposing or in any way interfering with Plot No. 495A on L.R. No. 8788/6 Kasarani, Nairobi (hereinafter referred to as the “Suit Property”) pending the hearing and determination of this application and suit. The Plaintiff/Applicant also seeks for the costs of this suit.

The Application is premised on the grounds appearing on the face of it together with the Supporting Affidavit of the Plaintiff/Applicant, Jane Njoki Kihara, sworn on 25th October 2012 in which she averred that in 1980, she and the 1st Respondent who is her husband bought the Suit Property from the 3rd Respondent who are the registered owners of L.R. No. 8788. She averred that the Suit Property is a subdivision of the said larger parcel.  She averred that the 3rd Respondent issued to them a Share Certificate as proof of ownership.  She also stated that to date, the title to the Suit Property has not been issued. She further indicated that they fenced the Suit Property and constructed some rental rooms thereon. She further averred that on 9th October 2012, she was informed by her neighbor that some unknown persons were fencing the Suit Property and that when she went to see for herself, she confirmed that this was true.  She further stated that she removed the wire fence around the Suit Property. She further stated that she also met the 2nd Respondent who confirmed that he had purchased the Suit Property from her husband. She indicated further that she was arrested by the police and was locked up at Githurai Kimbo Police Station on allegations of malicious damage to property. She stated that she was not aware of and did not consent to the sale of the Suit Property and asked her husband to refund the money he received from the 2nd Respondent. She requested the court to stop the sale.

The Application is contested. The 2nd Respondent, Gibson Irungu Muiyuro, filed his Replying Affidavit sworn on 2nd November 2012 in which he averred that he purchased the Suit Property from the 1st Respondent through a Sale Agreement dated 1st October 2012 a copy of which he produced to the court. He further stated that he paid the entire purchase price set out in the Sale Agreement being Kshs. 1,300,000/- and attached copies of his bank deposit slips. He further disclosed that both he and the 1st Respondent proceeded to the 3rd Respondents offices on 8th October 2012 where he paid a transfer fee of Kshs. 15,000/- and the Suit Property was transferred to him.  He produced a copy of the Certificate he has issued by the 3rd Respondent attesting to this. He further stated that prior to purchasing the Suit Property, he carried out due diligence to establish the ownership thereof and confirmed that it was solely owned by the 1st Respondent. He further averred that the 1st Respondent granted him vacant possession of the Suit Property. He also averred that the Plaintiff/Applicant is the registered owner of the adjacent Plot No. 495B and if she had any proprietary interests in the Suit Property, the same would either have been registered in her name or jointly with the 1st Respondent. He also stated that to allow the Plaintiff/Applicant to settle domestic scores with her husband at his expense is manifestly unfair and must not be entertained by this honorable court.

The Application is further contested by the 1st Respondent, Joseph Kihara Gichuhi, who filed his Replying Affidavit sworn on 2nd November 2012 wherein he averred that he is the immediate former owner of the Suit Property which he purchased jointly with Plot No. 495B from the 3rd Respondent back in 1979. He further stated that he advised the 3rd Respondent to register the Suit Property in his name and Plot No. 495B in his wife’s name. He further confirmed that as proof of ownership, the 3rd Respondent issued them with Share Certificates Nos. 160 and 161. He further confirmed that he deliberately had the Suit Property registered in his name as he did not regard it as matrimonial property or joint property with his wife and that he wanted to be free to deal with it as he wished. He further stated that around August 2012, he decided to sell the Suit Property and that is why he sold the same to the 2nd Respondent at a price of Kshs. 1,300,000/-.

In response thereto, the Plaintiff/Applicant filed her Further Affidavit sworn on 17th May 2013 wherein she averred that she is the one who purchased the Suit Property and Plot No. 495B using money borrowed from her then employer and that the 3rd Respondent issued her with Share Certificate Nos. 160 and 161. She further averred that she and the 1st Respondent agreed that he should be registered to hold the Suit Property while she would be registered to hold Plot No. 495B for and on behalf of each other and for their children. She further stated that the 1st Respondent held the Suit Property in trust and although it was registered in his name, he could not freely do with it as it was matrimonial property. She further denied any knowledge of the transfer of the Suit Property to the 2nd Respondent. She further denied that the 2nd Respondent was a bona fide purchase claiming that he did not carry out an official or physical search or exercise due diligence on the ownership of the Suit Property. She insisted that spousal consent was required to validate the sale.

Both the Plaintiff and the 2nd Respondents filed their written submissions which have been read and taken into account in this ruling.

In deciding whether to grant the sought after temporary injunction, I wish to refer to and rely on the precedent set out in the case of GIELLA versus CASSMAN BROWN (1973) EA 358 in which the conditions for the grant of an interlocutory injunction were settled as follows:

“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally 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 an application on the balance of convenience.”

Has the Plaintiff made out a prima facie case with a probability of success? In the case of MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS (2003) KLR 125, a prima facie case was described as follows:

“a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

There is the danger of being drawn into determining the merits of this case at this interlocutory stage of these proceedings. All that I am required to do at this stage is to establish whether the Plaintiff has established a genuine and arguable case warranting her protection as we await the final determination of the main suit. It is common ground that the property in dispute being the Suit Property is a subdivision of the larger parcel of land known as L.R. No. 8788 registered in the name of the 3rd Respondent. It is also common ground that the Plaintiff and her husband the 1st Respondent bought two subdivisions of that larger parcel of land from the 3rd Respondent being the Suit Property which was registered in the name of the 1st Respondent and the adjacent Plot No. 495B which was registered in the name of the Plaintiff. It is also common ground that the two subdivisions do not have titles yet and the only documents of ownership which the parties are relying on are share certificates issued by the 3rd Respondent. The dispute relates to the Suit Property which was registered in the name of the 1st Respondent. The Plaintiff’s argument is that the same comprises matrimonial property which was being held by the 1st Respondent in trust for his wife and children and that he was not at liberty to dispose of it in the manner that he did to the 2nd Respondent. The 1st Respondent’s argument is that the correct position is that he bought the Suit Property and had it registered in his name and that he was at liberty to do with it as he wished and therefore he was free to transfer it to the 2nd Respondent which he did. After doing my assessment and considering the evidence presented through affidavits, I find that the Plaintiff has not demonstrated any genuine and arguable case that she has proprietary rights over the Suit Property. It is clear that the Share Certificate issued by the 3rd Respondent in respect of the Suit Property bears the name of the 1st Respondent. It would therefore appear that on a prima facie basis, the person who had proprietary rights over the Suit Property was the 1st Respondent and not the Plaintiff. It therefore appears that the 1st Respondent was entitled to transfer the same to whomsoever he wished and that the sale of the Suit Property to the 2nd Respondent cannot be challenged. On that ground therefore, I find that the Plaintiff has failed to establish that she has a prima facie case with high chances of success at the main trial. That being my finding, I see no need to further interrogate whether the other two conditions in the Giella case have been satisfied.

The application is therefore dismissed. Costs shall be in the cause.

SIGNED AND DELIVERED IN NAIROBI THE _21st ____DAY OF ___February_____2014

MARY M. GITUMBI

JUDGE