MARARMA COOPERATIVE SOCIETY LTD v DAVID MUTHAMI MUTHEE & 2 Others [2010] KEHC 650 (KLR)

REPUBLICOFKENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

LAND AND ENVIRONMENTAL LAW DIVISION

CIVIL SUIT NO.2048 OF 2000

MARARMA COOPERATIVE SOCIETY LTD……......PLAINTIFF

VERSUS

DAVID MUTHAMI MUTHEE…1ST DEFENDANT/APPLICANT

THESEVENTHDAYADVENTISTCHURCH

OF EAST AFRICA LTD……………………….….2ND DEFENDANT

THE CITY COUNCIL OFNAIROBI………..…..3RD DEFENDANT

R U L I N G

1. By a chamber summons dated 30th June, 2010, David Muthami Muthee, the /1st defendant/applicant seeks the following orders:

(i)That this matter be certified urgent and be heard ex parte in the first instance.

(ii)That the 3rd defendant by itself, its servants or agents be restrained from any further or subsequent dealings in LR No.209/17488 Muratina Road, Eastleigh (hereinafter referred to as the “suit premises”) in any way by transferring, conveyance, leasing, letting, subdivision, sale or disposal thereof pending the hearing and determination of this suit.

(iii)That the plaintiff herein by itself, its servants or agents be restrained from any further or subsequent dealings in the suit premises in any way by transferring, conveyance, leasing, letting, subdivision, sale or disposal thereof, pending the hearing and determination of this suit.

(iv)That the registered owners of LR No.209/17488 Muratina Road Eastleigh, Mohamed Hashi Abdi and Ahmed Abdi Abdile by themselves, their servants or agents be restrained from any further or subsequent dealings in the suit premises in any way by construction, transferring, conveyance, leasing, letting, subdivision, sale or disposal thereof or making any developments thereon pending the hearing and determination of this suit.

(v)That the Officer Commanding Station (OCS) Pangani Police Station to provide security to ensure the enforcement of Order (ii), (iii), and (iv) herein.

(vi)That the 1st defendant/applicant herein be at liberty to apply for any further or other orders and/or directions as this honourable court may deem fit and just to grant in the circumstances.

(vii)That the costs of this application be provided for.

2. This application is based on the following grounds:

(i)That the applicant has a valid letter of allotment from the 3rd defendant/respondent herein and therefore valid title to the suit premises.

(ii)That the title to the suit premises held by the plaintiff herein is disputed and is the subject matter of this suit.

(iii)That the plaintiff/1st respondent in total disregard of the suit in court have fraudulently subdivided and sold a portion of the suit premises to Mohamed Hashi Abdi and Ahmed Abdile (hereinafter referred to as the “registered owners”).

(iv)That the registered owners despite lacking good title to the suit premises are in the process of erecting developments on the suit premises.

(v)That in all the circumstances, the respondents herein have acted capriciously, fraudulently and recklessly and have treated the applicant oppressively, out of bad faith and malice.

(vi)That the applicant has a prima facie case with a probability of success.

(vii)That the balance of convenience is in favour of restraining the respondents from any further dealings and transactions in the suit property until final determination of the suit herein.

(viii)That it is in the interest of justice that the aforesaid orders be granted as prayed.

(ix)That the applicant stands to suffer grave and irreparable damage if the orders sought are not granted.

3. The application is anchored on an affidavit sworn by the applicant and a further affidavit sworn by the 2nd defendant’s pastor Paul Owuor Ogayo wherein the above facts are deponed to. The applicant submits that the suit property is being interfered with. He further submits that the plaintiff and the 3rd defendant are in the process of disposing of the suit property. There is a letter from the Chief Valuer confirming this (annexure DMM1).

4. The applicant further avers that a search conducted by Pst. Paul Owuor Ogayo shows that as at 25th February, 2009 there was no transfer effected.  The applicant submits that the replying affidavit by Job Kilachi does not show that there has been any transfer. He further submits that the suit property has been developed by the applicant and the 2nd defendant. They will therefore suffer irreparable damage if the property is sold. He notes that he has satisfied the requirements of Giella vs Cassman Brown and has demonstrated that he will suffer irreparable loss and urges the court to grant this application with costs.

5. The application is opposed by the plaintiff who has sworn a replying affidavit through its assistant treasurer Job Kilachi. In short, the plaintiff maintains that it is the registered owner of the suit property. In support of that contention, a letter of allotment and a certificate of a title both in the plaintiff’s name have been exhibited. The plaintiff further maintains that the City Council of Nairobi did not have any capacity to give out land that has already been alienated by the Government of Kenya. The plaintiff disputes the alleged grant of lease to the City Council of Nairobi who is the 3rd defendant, maintaining that exhibited lease is undated and does not bear the period of the lease.

6. I have carefully considered the application which is before me.  I have also considered the affidavit in support and in reply as well as the annextures thereto. It is evident to me that the plaintiff/respondent has a certificate of title dated 27th November 1990. It is also apparent that according to the Lands Office, the suit premises was leased to the plaintiff for a term of 99 years with effect from 1st July, 1989 and a grant registered on 28th November, 1990. Although the 1st defendant/applicant disputes the validity of the lease, prima facie the lease document is sufficient evidence of title. Although the 1st defendant/applicant contends that he has put in place substantial investment on the suit property, the 1st defendant/applicant has not demonstrated that he has a prima facie case with probability of success as against the plaintiff.

7. In the circumstances there is no basis upon which this court can grant the order of interlocutory injunction sought by the 1st defendant. Moreover, Mohamed Hashi Abdi and Ahmed Abdi Abdile against whom prayer No.(iv) is sought, are not party to any of the consolidated suits and no orders can therefore issue against them. In short, the 1st defendant/applicant’s application for orders of interlocutory injunction has no merit and the same is dismissed.

8. Notwithstanding the above, I must point out to the parties herein that, according to the grant exhibited, the suit property is registered under the Registration of Titles Act. Therefore, Section 52 of the Transfer of Property Act applies. This means that during the active prosecution in court of the contentious proceedings in this court, regarding the right to the suit property, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto, under any decree or order which may be made, except with the authority of the court and on such terms as the court may impose. Therefore, any attempt by the plaintiff to dispose of the suit property, without the authority of the court will be a contravention of Section 52 of the Transfer of Property Act.  The 1st defendant/applicant’s application is otherwise dismissed with costs.

Dated and delivered this 19th day of November, 2010

H. M. OKWENGU

JUDGE

In the presence of: -

Matu H/B for Nyagah for the 1st defendant/applicant

Makumi H/B for Kajwang for the 1st respondent

B. Kosgei - Court clerk