Martha Wangui Gichigi & Stephen Kibera Thurura (Suing on their behalf legal rep of Veronica Wagaki Thuruka) v Henry Gitahi Thurura, Stabex International Ltd, County Land Registrar – Busia & Attorney General [2017] KEELC 3485 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 119 OF 2015.

MARTHA  WANGUI GICHIGI.

STEPHEN KIBERA THURURA (Suing  on their behalf legal rep of;

VERONICA WAGAKI THURUKA……..…………............…PLAINTIFFS.

VERSUS

1. HENRY GITAHI THURURA

2.  STABEX INTERNATIONAL LTD.

3.  COUNTY LAND REGISTRAR – BUSIA

4.  ATTORNEY GENERAL ]……...............................……DEFENDANTS.

R U L I N G.

1. The application before me is a Notice of Motion  dated 28/4/2016  filed  here on the same date.  It  was brought under sections 3A and 63  (e)  of Civil Procedure Act (cap 21) and  under order 40 rules 1, 2, and 3 of  the Civil Procedure Rules.  It is also stated to be brought under all other enabling provisions of law.  In the  application;  the two plaintiffs – MARTHA WANGUI GICHIGI  and STEPHEN KIBERA THURURA -  ask the court to restrain  the defendants – HENRY  GITAHI THURURA  (1ST DEFENDANT) STABEX INTERNATIONAL  LTD (2nd  defendant), COUNTY  LAND REGISTRAR – BUSIA (3rd defendant) and   ATTORNEY GENERAL (4TH defendant) – as   prayed for in the prayers set out on the face of the application.

2. The bone  of contention is ownership of  land parcel NO. NORTH TESO/KAMURIAI/1003  (‘’suit land’’) which  the plaintiffs claim to be entitled to but which the 1st defendant, who is their kin, illegally sold and transferred to 2nd defendant. The 3rd  and 4th  defendants  are sued   because of the role  they are said to have played in the alleged sale and transfer. The  suit is actually aimed at reversing the transactions  so that the plaintiffs can get their entitlement.

3. The application herein is an interim measure meant to take care of the situation before  the suit  is determined.  At this  stage only prayers  (c)  and (d)  are for  consideration.  Prayers (a)  and (b)  were for consideration at an earlier stage.  Prayers (c)  and (d)  are as follows:

Prayer (c)  An Order of injunction  do issue to restrain the defendants/respondents, their agents, servants or otherwise howsoever  from trespassing on, remaining on, entering in, or  continuing in occupation or possession of the developed housing premises on land parcel NO. NORTH TESO/KAMURIAI/1003 pending  hearing and determination of the suit.

Prayer (d)  That costs of this application be provided for.

4. According  to the plaintiffs, the land was purchased by 1st  plaintiff for her handicapped late daughter. That daughter died intestate. Succession  proceedings were never taken out to enable  anybody to get a title deed.  In spite of  that however, the  1st defendant  managed to get the land registered in his name. He then sold it to  2nd defendant. The plaintiffs further say that their workers and tenants are being threatened from   using  or accessing the suit land and there are also threats to  tenants who live in premises on the suit land.  The plaintiffs say they have  a prima facie case  against the defendants and the defendants are said not to have locus to interfere with the plaintiffs ownership of the suit land.

5. The 1st defendant responded by filing grounds of opposition but which in reality is a Notice of preliminary objection.  He  alleged that the suit land was sold with the full knowledge of the plaintiffs.  He termed the application as incompetent and alleged that it is an abuse of the court process. To the first defendant the orders sought are incapable  of being granted.

6. The 2nd defendant filed a replying affidavit on 12/8/2016. The  long and short of the 2nd defendants  response is that it acquired the property through purchase from 1st defendant, was  not  privy to any illegal or under hand dealings with  the property  by 1st defendant before purchase, followed  due process in acquisition, and is  therefore  an innocent  purchase for value  without notice of  any defect in title. That being, the  case, the 2nd defendant  urged that the application  be dismissed.

7. The other  parties   to the suit – 3rd & 4th  defendants – did not make a response and it is clear that  the application does not affect them in practical terms.

8. The  application was canvassed by way of written  submissions. The plaintiffs first set of submissions  was filed on 16/9/2016. There was a second set, filed mainly  as a response  to 2nd defendants submissions, on  28/11/2016 while  those of 1st defendant  were filed on 13/2/2016.

9. The plaintiff submitted, interalia, that they have  established a prima facie case with overwhelming  chances  of success . According to the plaintiffs, the  defendants have failed to answer pertinent factual matters raised in the application. And  the matters generally concern the illegal and fraudulent nature of the transactions initiated by the 1st defendant regarding the suit property.  The allegation by the 2nd defendant that   it was an innocent  purchaser for value was said not to hold against the plaintiffs claim that the transactions by  1st defendant were fraudulent.

10. The plaintiffs were also said to be likely to suffer irreparable loss as the defendants  have  disrupted  their petrol  retail business and are intent  on taking over rental premises. This is said to pose the risk of exposing  the plaintiffs to possible suit  from tenants. The tenants are said to be apprehensive of abrupt and/or  arbitrary removal.  They are looking  up to the plaintiffs  for an effective solution.

11. The balance of convenience was said  to lie in plaintiff’s favour as a restraining order would alleviate the suffering   occasioned by the defendants.

12. As l pointed out the plaintiffs filed a second  set of submissions to counter some of the averments made in the 2nd defendants submissions. The 2nd defendant had emphasized their innocence in the whole  transaction. The plaintiffs  countered this by submitting that the coming into force of the Land Registration Act rendered obsolete the principle of innocent purchaser  in instances where   fraud has taken place. In other  words, the  Land Registration Act is construed to have neutered or ousted the legal protection of an innocent purchaser for value without notice  of the defect of title.

13. The first  defendant submitted that the requisite  principles required to meet the  threshold for granting temporary restraining orders have not been met. According to 1st defendant, no prima facie case was made . The plaintiffs  did not also  demonstrate irreparable loss.  Moreover, the  plaintiffs can adequately be compensated with damages  as the respondents are capable of doing so.

14. In  the submissions of the 2nd defendants, fraud was said to have been alleged against the  1st defendant without evidence to support it. |And  even if such fraud were to be found, the 2nd defendant  averred that it was not part of it. The 2nd defendant said it was a bonafide purchaser. It  exercised  due diligence and it therefore acquired an absolute and indefeasible title.  The plaintiff were said to have failed to establish a prima facie  case.  It was submitted that the plaintiffs can be compensated in damages should they  ultimately win the case. The balance of convenience was also said to be in favour of 2nd defendant given that the land is registered in its name.

15. Some  decided authorities were availed. The plaintiffs,  for instance, availed the cases of PETER  NDERITU JULIUS VS HUMPREY WANGOMBE KAHARIRI & ANOTHER: ELC. NO. 80  OF 2012, KERUGOYA, and ELIJAH MAKERI NYAAGWA’RA VS  STEPHEN MUNGAI NJUGUNA & ANOTHER;  ELC. NO. 609 B/2012, ELDORET. Some of the case availed by 2nd defendant were: JANET FLORA MUNA VS JOHN KARANU IKINU & 2 OTHERS [2015] e KLR, . SHIMONI RESORT VS REGISTRAR  OF TITLES  FIVE others: [2016] e KLR ,CHARLES KARATHE KIARIE & 2  others VS  ADMINISTRATORS  OF THE ESTATE OF JOHN WALLANCE MATHARE( deceased) and 5 others: [2013] e KLR and ZEBAK LIMITED VS NADEM ENTERPREISES [2016] e KLR.I have  read those authorities .

16. I have  considered the application, the responses made, and  the pleadings in the suit as filed.  I have considered  the submissions and the decided authorities too. For all practical and legal purposes the application  is essentially between the plaintiffs  and 2nd defendant.  The other  defendants basically lose nothing whether  or  not the  application is granted.  And this is so because they neither possess nor operate on the suit land.   Both  the plaintiffs and the 2nd defendant  seem to realize this and the submissions against each other are therefore lengthy  and detailed.  In fact, I need to point out that if l become equally detailed in addressing the issues raised, I will  end up determining  some of the issues for trial prematurely.

17. To avoid  a scenario like that, my approach must be circumspect.  I  bear in mind the holding of the court in  SHITAKHA VS  MWANDO  & 4 others  [1986] KLR  445  where it was emphasized  that the court should not decide substantive issues  at the interlocutory stage. This  ought to be left for trial. There is also the case of MBUTHIA VS JIMBA CREDIT  FINANCE CORPORATION & ANOTHER [1988] KLR  1,  where  the court held, interalia, that the correct approach in dealing with an application for  injunction is not to decide issues of fact, but  rather to weigh up the relevant  strengths of each sides proposition. The  Lower court judge  in that case was faulted for having gone  far beyond his proper duties by  making final findings of fact.

18. I have pointed out that l have considered the authorities availed.  In view of the approach l have chosen in handling the application, the authorities are largely unhelpful.  In fact the authorities would be useful for the main trial, not  in the interlocutory stage.  I need to explain: The  principle of an innocent purchaser  for value without notice of defect of the title  is, for  instance, a major  plank in the 2nd defendants defence.  The plaintiffs noticed that and opposed it strenuously. Their position is that the principle does not apply in view of the relevant provisions of Land Registration Act. They  even availed a case  -  ELIJAH MAKJERI NYANGWA’RA  VS STEPHEN NJUGUNA & Another [2013] e KLR – where the court expressed  an opinion similar  to that. To  counter that, or  probably to even out scores, the plaintiffs brought a case – SHIMONI RESORT  VS REGISTRAR  OF TITLES  & 5 others [2016]  e KLR  - where  the court expressed a contrary view. If  l now start considering the import of these two cases, I would prematurely be determining an issue that is essentially for determination at the main trial.  In other words, I would be giving  a pointer as to the outcome of the main suit.

19. IN this matter, it  seems clear that the 2nd defendant came to the scene after the 1st defendant had already transferred the land to himself.  It  is plain that the 1st defendant had done so and even secured a loan  from a bank. The  fraud alleged by the plaintiff seems to largely belong to the period  before the  2nd defendant came to the scene. That fraud  seems to have taken place in the process of transferring title from the deceased daughter of  the plaintiff  to 1st defendant.

20. The 2nd defendant then came to the scene and purchased the property from 1st defendant  much like any other purchaser would do. As things stand, the  2nd defendant has title to the suit land. The plaintiffs are not the title holders and the presumption  of rights and privileges that go with such  ownership cannot be  construed in their favour at this stage.

21. In a scenario like that, the plaintiffs needed to give an undertaking to pay damages in the event that the 2nd defendant turns out to be successful in the end. They  have not given such  undertaking.  Instead,  it is the 2nd defendant itself  that  has undertaken to pay damages to the plaintiffs.  This omission by the plaintiffs  is an obvious  disadvantage to them.  In  GATI VS BARCLAYS BANK (K)  LTD [2001]  KLR  525 the court held, interalia, that  an undertaking as to damages is one of the  criteria for granting an injunction and where none has been given an injunction cannot issue.

22. It needs to be borne in mind too that the plaintiffs are trying to restrain a title holder.  Being not title holders themselves, they are in a somewhat disadvantaged position. It becomes rather difficult for them to convince anybody that they have established a prima facie case.  In JAMIN KIOMBE  LIDODO VS EMILY  JERONO KIOMBE & Another: HCC. NO. 81/2005 (unreported)  Gacheche J, ( as she  then was)held  that where an applicant  has not shown title to the suit land,  it is unsafe to hold  that a prima facie case is made.

23. In KENYA HOTELS LIMITED VS  KENYA COMMERCIAL BANK LTD & Another : [2004] 1 KLR 80,  the  court held,  interalia, that  while remaining guided by the principles spelt out in GIELA VS CASSMAN BROWN & CO. LTD [1973] EA 358, it is also  necessary to consider  all the other circumstances of the case. From  the pleadings in this particular case, the central player  seems to be the 1st defendant.  The 2nd defendant seems to be  a late comer to the scene.  But  the injunction sought is mainly  targeted  at the 2nd defendant,  not the first  defendant.  This  is another  consideration that dis-inclines me  from granting  the injunction sought .

24. The upshot  therefore  is this. The plaintiffs  application is found unmeritorious and the same is hereby dismissed with costs.

DATED AND DELIVERED ON 16TH DAY OF FEBRUARY, 2017.

A.K. KANIARU,

JUDGE.

1ST PLAINTIFF PRESENT.……………………………

2ND PLAINTIFF…...PRESENT………………………

1ST DEFENDANT…ABSENT…………………………

2ND DEFENDANT…ABSENT…………………………

3RD DEFENDANT….ABSENT…………………………

4TH DEFENDANT…..N/A………………………………

J U D G E.