John Kaviti Mungaithi v Peter Wambua Kaviti,Paul Ndavi Kaviti,Simon Muoki Kaviti,Registrar, Makueni District Land Registry & Makueni Land Control Board [2019] KEELC 1835 (KLR)

REPUBLIC  OF  KENYA

IN THE  ENVIRONMENT  AND LAND  COURT  AT MAKUENI

ELC  SUIT  NO. 99 OF 2018

JOHN KAVITI MUNGAITHI.................................................PLAINTIFF/APPLICANT

VERSUS

PETER WAMBUA KAVITI .....................................1ST DEFENDANT/RESPONDENT

PAUL NDAVI KAVITI .............................................2ND DEFENDANT/RESPONDENT

SIMON MUOKI KAVITI ........................................3RD DEFENDANT/RESPONDENT

THE REGISTRAR,

MAKUENI DISTRICT LAND REGISTRY...........4TH DEFENDANT/RESPONDENT

THE MAKUENI LAND CONTROL BOARD......5TH DEFENDANT/RESPONDENT

RULING

1) What  is before this  court for ruling  is the  Plaintiff/Applicant’s  Notice of Motion  application expressed  to be brought  under Sections  13(2)  (e), 7 (a)  to (i)  of the Environment  and Land  Court  Act, Chapter 12 A  of the Laws of Kenya,  Order 40 Rules 1, 2 and 4  and Order 51 Rule  1 of the Civil Procedure Rules, 2010, Sections 1A, 1B, 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya , Articles 40(1) and 159 (1)  and  (2) of the   Constitution  of Kenya and all other enabling provisions of the  law for orders;

1. Spent

2. That  an order  of restriction  do issue restraining the Defendants/Respondents  from transferring  or in any way dealing with the title to all that property known as title number: Makueni/Kako/584 and the  improvements thereon, within Makueni County (the Suit Premises) until further orders of this honourable  court.

3. That  an order of injunction  do issue restraining   the Defendants/Respondents  by themselves, servants, agents and/or  employees or any of them or  any person, body or institution  acting pursuant to their  instructions individually or  collectively or otherwise  from alienating, entering, occupying, dealing and/or  interfering in any way with the Plaintiff /Applicant’s quiet possession, use, occupation, development  and proprietorship of the suit premises.

4. That  an order   of injunction  do issue restraining  the Defendants/Respondents by themselves, servants, agents and/or employees or any of them or any person, body or institution acting pursuant  to their   instructions individually or collectively or otherwise interfering with the Plaintiff/Applicant sub-dividing the suit premises.

5. That an order do issue to the 2nd and 4th Defendants/Respondents to remove the caution registered against the title over the suit premises.

6. That an order do issue to the 5th Defendant/Respondent to grant the Plaintiff/Applicant consent   to sub-divide the suit premises.

7. That  an order do issue directed to the OCS, Mumbuni Police Station  to ensure compliance with the orders issued by this  honourable court.

8. That  this honourable  court  do grant any other orders in this matter to meet the ends  of justice.

9. That  the costs of  this application be provided for by the  Defendants/Respondents.

2) The application is dated 4th  October, 2018 and  was  filed in court on 9th October, 2018.  It is predicated on the grounds on it’s face and is supported  by the supporting  and further  affidavits  of John Kaviti Mungathi, the Plaintiff/Applicant herein, sworn at Nairobi on 3rd  October, 2018 and 20th  January, 2019 respectively.

3) The 1st to the 3rd  Defendants/Respondents have  opposed the application vide the replying affidavit of Simon Muoki Kaviti, the 3rd  Defendant/Respondent who has sworn it  with the authority  of his Co-Defendants/Respondents.

4) Amongst the grounds that the  Plaintiff/Applicant  has raised are that  the  Plaintiff/Applicant  is the registered  owner of the suit  premises which he intends to subdivide amongst  his sons, that the 1st  to 3rd Defendants/Respondents  who  are the sons  of  his first wife have frustrated the Plaintiff/Applicant’s  intention and effort to subdivide  the suit  premises, that the Plaintiff/Applicant has suffered and shall  continue to suffer irreparable damage if the orders sought are  not granted, that he has a strong  prima facie case and that the Defendants/Respondents will not be prejudiced   in any way if the application is granted.

5) The Plaintiff/Applicant has repeated the same grounds in his affidavit. The Plaintiff/Applicant has  further  deposed  that  the 1st to the 3rd Defendants/Respondents have chased away surveyors who on his invitation have visited the suit premises, that the three Defendants/Respondents have declined  to attend the Makueni Land Control Board  despite  various summons by its chairperson as can be seen from   a copy of summons annexed as JKM2 in paragraph10 of the supporting affidavit.  The Plaintiff/Applicant goes on to depose in paragraph 24 of his supporting   affidavit that he has a strong prima facie case with  a  very high chance of success.

6) On the  other  hand, the 3rd  Defendant/Respondent has deposed in paragraphs 3,4,5,6 and 8 that the suit land is matrimonial  property  where  the  Defendants/Respondents built their  homes and co-existed with the Plaintiff/Applicant for several  decades, that  he is advised  by his  advocate on record which  advice he verily  believes  to be true that  the  application is a non-starter and bad in law.  That there is no single threat to damaging the  substratum  of the suit land, that granting the orders sought  will amount to determining  the suit before any evidence is adduced, that the reason  for objecting to sub division  is because it goes against what the family agreed on vide the written agreement  dated 11th August,2018 annexed as SMK -2 and that the application  for consent to subdivide the suit land has not been heard by the Land Control Board which has power to grant  or deny such an application upon which any dissatisfied party can appeal to the Provincial  Land Control Board and not this court.

7) In paragraph 4 of his further affidavit, the Plaintiff/Applicant has deposed that the suit property has never been matrimonial property as alleged in paragraphs 3 of the replying affidavit.  He goes on to depose in paragraph 5 of the same affidavit that since he owns the suit property, he should deal with it as he wishes.  He further deposes in paragraph 6 that this court has jurisdiction to determine all land disputes.

8) The Plaintiff/Applicant’s  counsel raised the following  issues  for determination;

i.  Whether  this honourable court has jurisdiction  to try  this matter;

ii. Whether  the suit premises is matrimonial property;

iii.  The status  of the agreement annexed as  SMK 2 to the supporting  affidavit   of Simon Muoki Kaviti dated 3rd December, 2018 and filed on 4th December, 2018;

iv. Whether  the Plaintiff should  be forced  to sub-divide the suit premises, one way or another;

v. Whether  the application should be allowed;

vi. Who should bear the costs of the application.

9) On the other hand, the  counsel for the Defendants/Respondents  correctly submitted  that the principles for granting interlocutory orders are as enunciated  in the case of Giella Vs  Cassman Brown  & Co. Ltd[1973] EA 358which are;

a) The Plaintiff/Applicant  must  show a prima facie  case with probability  of success.

b) An interlocutory injunction will not  normally be granted  unless  the Plaintiff/Applicant  must  otherwise suffer irreparable  injury, which would not in adequately be compensated  by an award of damages.

c) If the  court is in doubt, it will decide an application on the   balance of convenience.

10)  As  for  mandatory injunction  the counsel cited the case of Kamau  Mucuha  V Ripples  Ltd [1993] eKLR  where  it was held   that;

“ The principles laid down with regard to temporary mandatory injunctions are that they will only be granted  exceptionally  and in the clearest of cases.”

11) Order  40 Rule 1 of the Civil Procedure Rules  provides as follows;

“ Where in any suit it is proved  by affidavit or otherwise :-

a) That any property  in dispute  in a suit is in danger of being wasted, damaged, or alienated by any party to the  suit or wrongfully sold in execution of a decree or the court may by an order grant temporary injunction to restrain such act, or make such other order for the  purpose of staying  and preventing  the wasting, damaging, alienation, sale, removal or disposition of the property, as the court  thinks fit until disposal of the suit or until further  orders.”

12)  Order  40 Rule  2  provides as follows;

1. In any suit  for  restraining  the Defendant from committing  a breach of   contract or other injury  of any kind, whether compensation is   claimed  in the suit or not, the Plaintiff may, at any time  after the commencement  of the suit, and either  before  or after  judgement, apply to the court for temporary injunction  to restrain  the Defendant  from committing  breach of contract or injury complained of, or any injury of a  like  kind  arising out of the same contract relating  to the property or right.

2. The court may by order grant such injunction on such term as to an inquiry as to damages the duration of the injunction, keeping  an account, giving security or otherwise as the court deems fit.

13)  Whereas I agree  with  counsel for the Plaintiff/Applicant that this court has jurisdiction to try this matter and that only spouses  can raise the issue of matrimonial property, it is clear  that  it is  the Plaintiff/Applicant himself  who wants to subdivide the suit property and he has been prevented  from doing  so by the Defendants/Respondents herein.  There is no  evidence from the Applicant’s affidavit  to show that  the suit property is in danger of being alienated or wrongfully sold by the Defendants/Respondents herein save for the  acts of the Defendants/Respondents to bar the surveyors commissioned by the Plaintiff/Applicant   to subdivide the suit property from carrying  out their mandate. Prima  facie, the Plaintiff/Applicant  has not shown  that he has a case with probability of success nor has he shown that he will otherwise suffer irreparable injury which would not   adequately be compensated  by an award of damages. If anything, granting of the order of temporary of injunction would cause irreparable injury to the Defendants/Respondents who have been residing on the suit properties as they would be forced  to move  out of the said suit property.  It is not lost on me that to grant the  order  of removal of  caution and consent  to subdivide would determine the suit with finality at this  interlocutory stage. The Plaintiff/Applicant should follow the procedure provided for  by the applicable law to obtain the necessary consent to subdivide the suit property. This court is not in doubt so as to cause it to decide the application on a balance of  convenience. Lastly, I see no prayer for issuance of a mandatory injunction at this interlocutory stage.

14) The upshot of the foregoing is that the application by the Plaintiff/Applicant lacks merit. Same is dismissed with costs to the Defendants/Respondents.

Signed, Dated  and Delivered  at Makueni this 6th day of September, 2019.

Mbogo C.G,

Judge

In the presence of;

Mr. Nyabuto holding brief for Ms Mwende for the Plaintiff/Applicant.

Ms C. Nzioka Court Assistant

No appearance for the 1st, 2nd and 3rd Defendants/Respondents

No appearance for the 4th and 5th Defendants/Respondents

Mbogo C.G, Judge

6/9/2019