Martha Wangui Thurura & Kojak Ndegwa Gtichigi v Henry Gitahi Thurura, Stabex International Limited, County Land Registrar Busia & Attorney General [2017] KEHC 7481 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 117 OF 2015.

MARTHA  WANGUI THURURA

KOJAK NDEGWA GTICHIGI(Both suing as Legal Representative  of

CHRISTINE  WANGECHI THURURA……….............…………  PLAINTIFF.

VERSUS

HENRY GITAHI  THURURA ……………..………..……1ST  DEFENDANT.

STABEX INTERNATIONAL  LIMITED…..…......……….2ND  DEFENDANT

COUNTY  LAND REGISTRAR BUSIA……...…..………3RD DEFENDANT.

THE HON ATTORNEY GENERAL…………....…………4TH DEFENDANT.

R U L I N G.

1. The application under consideration is a Notice of Motion dated 28th  April, 2016 filed here on the same date.  It is  brought under section 3A and 63 (e)  of Civil Procedure  Act (cap 21) and  Order 40  Rules 1, 2 and 3 of  Civil Procedure  Rules.  It  is also expressed  to be brought under all enabling  provisions of law.  In the application, the  two plaintiffs – MARTHA  WANGUI THURURA and KOJAK NDEGWA  GICHIGI - want the  defendants – HENRY  GITAHI THURURA (1st defendant), STABEX INTERNATIONAL LIMITED (2nd defendant) COUNTY LAND REGISTRAR – BUSIA ( 3rd defendant) and  THE HON. ATTORNEY GENERAL (4th defendant) – restrained in accordance with prayers set out on the face of the application.

2. The dispute  between the parties revolves  around land parcel NO. NORTH TESO/KAMURIAI/1002. The two plaintiffs and the 1st defendant are siblings and their late mother – CHRISTINE WANGECHI  THURURA -is said to have owned the land. The 1st defendant however is alleged to have illegally appropriated  the land  to himself, charged it to a bank for a loan, and eventually sold it to the 2nd defendant.  The 3rd and 4th defendant are sued because of the role they are said to have played in facilitating the 1st  defendant  to achieve his nefarious schemes.  The  suit is actually seeking a reversal of what the 1st defendant  did so that the two  plaintiffs can get their  entitlements of their late mother’s land.

3. The application herein is 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) having been for consideration at an earlier stage. The prayers for consideration are as follows;

Prayer (c)  An order  of injunction do issue to restrain the  defendant/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/1002 pending the hearing and   determination  of the suit.

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

4. According  to the plaintiffs, their  late mother purchased land parcel NORTH TESO/KAMURIAI/1002 (‘’suit land’’ hereafter) but  died intestate later.  No  succession proceedings have ever taken place.  In spite  of that however, the  first defendant managed to get the suit land registered in his names.  He  then sold the land to the 2nd defendant. The  plaintiffs say that their family and workers are threatened from using or accessing the suit land and there are also threats to tenants who live in houses  on the suit land. The plaintiff 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 first  defendant responded by filing what he called grounds of opposition but  which in reality is a Notice of preliminary  objection. He  alleged that  the suit land was sold with full knowledge of the plaintiffs.  He  termed the application as incompetent and alleged it is an abuse of the court process.  To the 1st defendant, the order 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 underhand dealings  with  the property by 1st defendant before purchase’ it followed  due process in acquisition, and is  therefore an innocent purchaser 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 and  4th defendants – did not make a response and it is  clear that  the application is not affecting 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.  The 2nd defendants submissions were filed on 27/10/2016 while  those of the 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 suits 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 plaintiffs favour as a restraining  order would  alleviate  the suffering occasioned by the  respondents.

12. As l pointed out, the plaintiffs filed a second set of submission 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 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 the  1st defendant, no prima facie case      was made. The plaintiffs  did not also demonstrate  irreparable   loss. Moreover, the plaintiff’s can adequately be compensated  with  damages as the respondents are capable of doing so.

14. In the submissions of the second defendant, fraud was said to have been alleged against  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 second defendant said  it was a   bonafide purchaser.  It  exercised  due  diligence and it therefore acquired an absolute and indefeasible title. The plaintiffs were said to have failed to establish a prima facie case.  It was also 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. 80/2012,     KERUGOYA  and ELIJAH  MAKERI NYAGW’RA VS STEPHEN   MUNGAI NJUNGUNA  & Another:  ELC. NO. 609 B/2012,ELDORET. Some  of the cases availed by the 2nd defendant  were: JANET FLORA MUNA VS JOHN  KARANU IKINU & 2 OTHERS  [2015]eKLR, SHIMONI RESORT VS REGISTRAR OF TITLES & FIVE  OTHERS: [2016] e KLR, CHARLES  KARATHE KIARIE & 2 OTHERS VSAdministrators of the estate ofJOHN  WALLACE  MATHARE (deceased) and  5 others: [2013] eKLR and ZEBAK LIMITED VS NADEM ENTERPRISES [2016] e KLR.I have  read     these authorities .

16.    I have  considered  the application, the responses made, the rival   submissions, and the pleadings in the  suit as filed. For all practical and legal purposes the application is essentially between the plaintiffs  and the 2nd defendant. The other defendants basically loose 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 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  MWAMODO & 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 the trial. There is  also the case of MBUTHIA VS JIMBA CREDIT FINANCECORPORATION & 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 found to have gone far  beyond his proper duties by making final findings of fact.

18.  I have pointed out that l have read 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 title is a major plank in the 2nd defendants defence. The plaintiffs noticed that and opposed it strenuously. Their  position  is that that principle does  not apply in view of the relevant  provisions of Land Registration Act. They  even availed a case –ELIJAH MAKERI 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 second defendant  availed  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  unwittingly be giving a pointer as to the outcome of     the main trial.

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 plaintiffs 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  mother of the  plaintiffs to the  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 the title to the land. The    plaintiffs  are not the title  holders and the presumption of the 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 who has undertaken to pay damages   to the plaintiffs.  This omission by the plaintiff 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 tit le holders themselves, this  puts them  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) GACHCHE 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.

A.K. KANIARU,

JUDGE.

DATED AND DELIVERED ON 15TH DAY OF FEBRUARY, 2017.

IN THE PRESENCE OF;

1ST PLAINTIFF………………………………………………………….

2ND PLAINTIFF………………………………………………………..

1ST DEFENDANT…………………………………………………….

2ND DEFENDANT……………………………………………………….

3RD DEFENDANT………………………………………………………

4TH DEFENDANT……………………………………………………..

COUNSEL………………………………………………………………..

J U D G E.