Masika Mutie v Kanyiva Nzungi, Ndaki Kisiu Mite, Josephine Nzula Muli, Thomas Musau Kitonyo & Tanathi Water Services Board National Land Commission [2018] KEELC 179 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MAKUENI

MISC. CIVIL NO.  7 OF 2017

MASIKA MUTIE.............................................APPLICANT

VERSUS

KANYIVA NZUNGI.............................1ST  RESPONDENT

NDAKI KISIU MITE......................... 2ND  RESPONDENT

JOSEPHINE NZULA  MULI.............3RD  RESPONDENT

THOMAS MUSAU KITONYO...........4TH RESPONDENT

TANATHI WATER SERVICES BOARD

NATIONAL LAND COMMISSION..5TH RESPONDENT

RULING

1) What  is before  me  for ruling  is the Plaintiff’s/Applicant’s  amended  notice of motion application dated  24th April, 2017 and filed in court on the 25th April, 2017.

2) The  application is expressed  to be brought  under sections 1A, 1B  and 3A of the Civil Procedure Rules, Orders  40 Rule 1 and Order  51 Rule 1 of Civil Procedure Rules and all other enabling  provisions of the law for orders:-

3) The application is predicated on the grounds on its face and is supported by the supporting affidavit of Masika Mutie sworn at Machakos on the 24th April, 2017.  It is opposed by the first, second and the third Defendant/Respondents vide their replying affidavit sworn at Machakos on the 14th December, 2017 by the third Respondent with the authority of his co-Respondents.

4) On the 7th November, 2017 the  fourth Respondent filed its grounds of  opposition  dated 31st  October, 2012 as well as a replying  affidavit sworn by Nicholas Muthu, its CEO, on the  31st  October, 2017.

5) The court gave directions that the application be disposed off by way of written submissions. The Applicant was granted leave to file supplementary affidavit and submissions in view of the fact that by the time when he filed his submissions dated 11th December, 2017 the application had not been opposed by the Respondents.  By the time of writing this ruling, the Applicant had not filed such supplementary affidavit and submissions.

6) The submissions by the Applicant’s counsel were that it is evident from the supporting affidavit  sworn by the Applicant, there is a pending judicial review  proceedings being Miscellaneous Civil Application number 55 of 2004 which is not disputed  by any of the Respondents. The counsel went on to submit that the same arose out of the decision by the District Commissioner Makueni which granted the suit property to the Respondents herein.  The counsel added that leave was granted to the Applicant herein to institute judicial review proceedings which leave would operate as stay  of the  decision of the District Commissioner.  The counsel further submitted that the effect of the order of stay is that title to the suit property being Mavindini/Mavindini/1263 could not be issued in favour of the Respondent.

7) The counsel  further  submitted that despite of  the   stay order, Kanyiva Nzungi  went ahead and fraudulently obtained title to land  parcel number Mavindini/Mavindini/1263, an issue not disputed by the Respondents.  The counsel termed the acquisition of the title in the subsistence of the order remains illegal and highly contemptuous.

8) It was the Applicant’s counsel’s submissions that before the proceedings could be determined, the government of Kenya indicated its intention to acquire certain parcels of land for the development of Thwake Multipurpose Dam, and such compensation was and still is due to the registered owners of the affected properties, the suit property herein being one of them.

9) The counsel further submitted that the  Applicant seeing that he would be  completely disadvantaged  filed this application where he seeks that compensation to either party  be halted   until the issue of ownership of the suit property is determined.

10) The counsel for the first to the third Respondents cited  section  7 of the Civil Procedure Act which  provides as follows;

“ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between same parties, or  between parties under whom  they or any of their  claim, litigating under the same  title, in a court competent to try such subsequent suit or the suit in which  issue has been subsequently raised and has been heard and finally determined by such court.”

11) The counsel was of the view that the ruling in Makueni SPMCC 107/2016 has met the above threshold, and therefore the application by the Applicant should be dismissed with costs to the first to the third Respondents. The counsel went on to submit that it is not in dispute that the  title deed to suit land Mavindini/Mavindin/1263 was  obtained  in the  names of Kanyiva Nzungi Mue now deceased  and  the three Respondents legally acquired letters of administration  in Makueni Succession Cause  number 107/16 upon which a title deed was issued to them.

12) The counsel further submitted that the Applicant tried to challenge issuance of the grant but he failed and as such the Respondents remain the legal administrators, beneficiaries and owners of Mavindini/Mavindini/1263.  The counsel pointed out that the bona fide and legal owners are capable of receiving compensation of the compulsory land acquisition from the fourth and the 5th Respondents.

13) Finally, the counsel submitted that the issue of fraudulent obtaining of title deed does not apply since the Applicant had knowledge of the issuance of the title deed more than 10 years ago.  The counsel added that this application is prompted by the monetary compensation.

14) The counsel for the fourth Respondent in his submissions told the court that the Respondent does not have a problem with the application save for the fact that the fourth Respondent does not held money to do with the settlement and compensation of  Thwake Multipurpose Project.  The counsel added that it would be superfluous and nugatory to issue injunctive orders against party who is, despite its willingness, not able to observe the terms and conditions of such an injunctive order.

15) The counsel further submitted that it is unnecessary for the fourth Respondent to critically analyze and consider  whether the conditions for the grant of injunctive orders set out in Giella Vs Cassman Brown & Co. ltd [1973] EA 358 and other similar  cases that have interrogated  conditions for grant of injunctive  remedies are  met.

16) The counsel urged the court not to grant those orders against the fourth Respondent.

17) Having evaluated  the evidence on record, I do note that although  the Applicant did file Machakos High Court Miscellaneous Civil Application  number 55 of 2004 and got  leave to institute judicial review proceedings which  leave  operated as stay, he has not  explained  whether  or not  he filed the  substantive application for judicial review within  21 days  as is indicated  in the  order  issued  by the court on 8th July, 2004. It is not enough for the Applicant to say that the judicial review proceedings are yet to be determined without proffering evidence on the status of the proceedings in question.

18) The Applicant is silent on the fact that he unsuccessfully tried to challenge the limited grant of letters of administration ad colligenda bona issued to the first to the third Respondents.  By virtue of the said grant, the three Respondents are entitled to receive compensation on behalf of the estate Kanyiva Nzungi and also on their own behalf.

19) I also note that the Applicant has not rebutted the depositions by the fourth Respondent that it does not hold  any money to do with compensation for compulsory acquisition of land related to Thwake Multipurpose Dam Project.

20) The upshot of the above is that the application has no merits and same is dismissed with cost to the first to the third respondents. It is so ordered.

Signed, dated and delivered at Makueni this 23rd day of November, 2018.

MBOGO C.G

JUDGE

IN THE PRESENCE OF;

Mr .  Hassan holding brief  for Mr. Mulei for the Applicant

No appearance for the Respondents

Mr. Kwemboi Court Assistant

MBOGO C.G, JUDGE

23/11/2018