Melchizedek Ndolo Nzyoki, James Keli Muinde & Nthenya Willy Kyele (Suing for and on behalf of and as the Chairman, Secretary and Treasurer of Kiliku Savings Scheme Shg) v Gatatha Farmers Co-op Society Ltd & Peter Kibera [2017] KEHC 6993 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC CASE NO. 101 OF 2012

MELCHIZEDEK NDOLO NZYOKI

JAMES KELI MUINDE

NTHENYA WILLY KYELE (Suing for and on behalf of and as the

Chairman, Secretary and Treasurer of Kiliku Savings

Scheme SHG)..................................................................PLAINTIFFS

VERSUS

GATATHA FARMERS CO-OP SOCIETY LTD...........1ST DEFENDANT

PETER KIBERA.......................................................2ND DEFENDANT

RULING

1. The 1st and 2nd Defendants have filed the Applications dated 4th December, 2012 and 17th July, 2012 in which they are seeking to strike out the Plaintiffs’ suit.

2. In the Application dated 17th July, 2012, the 2nd Defendant has deponed that on 19th September, 2013, he purchased a parcel of land known as 1848/3 (the suit land) from Pan African Credit and Finance Limited (in liquidation);that vide an Indenture of 24th November, 2010, the suit land was transferred to him and that before he purchased the land, he did a search which established that the land had been charged to Pan African Credit and Finance Limited.

3. According to the 2nd Defendant, he sold the suit property to the 1st Defendant and that the suit property was transferred to the 1st Defendant vide an Indenture of Assignment of 8th June, 2011.

4. It is the 2nd Defendant’s case that by the time the Plaintiff alleges to have been offered the land, he had already purchased the land and that the suit does not disclose a reasonable cause of action, is frivolous and vexatious.

5. The 2nd Defendant finally deponed that the Plaintiff’s have never been in possession of the suit land; that neither the President nor any other authority had the powers to allot the suit land and that the suit is clearly an abuse of the process of the court.

6. On his part, the 1st Defendant’s Chairman deponed that the 1st Defendant purchased the suit land from the 2nd Defendant for Kshs.201,880,000; that the suit property was eventually transferred to the 1st Defendant vide an Indenture of Assignment of 8th June, 2011 and that the Plaintiffs do not have a claim over the suit land.

7. The Plaintiff’s advocate filed a Notice of Preliminary Objection in which he averred that the Application is incompetent because it has been filed under Order 2 Rule 15(1) (a) of the Civil Procedure Rules where no evidence should be annexed.

8. In his Replying Affidavit, the 1st Plaintiff deponed that there is no proof to show that the property was discharged before the 2nd Defendant allegedly bought it; that the Indenture of Assignment between the Mortagagor and the Vendor has never been registered and that although the 2nd Defendant’s Supporting Affidavit shows that he bought 1,263 acres of land on 24th November, 2010, he did not have any land to sell to the 1st Defendant on 16th August, 2010.

9. It is the 1st Plaintiff’s deposition that the transactions between Pan African Credit Finance Limited and the 2nd Defendant were not above board and that by the time the late Paul Joseph Ngei purported to give to the 2nd Defendant consent, he was bankrupt and had no capacity to give the consent.

10. The 1st Plaintiff finally deponed that the Defendants knew that the land belongs to the Plaintiffs.

11. The Plaintiffs’ and the Defendants’ advocates filed submissions which I have considered. I have also considered the authorities that are on record.

12. In their Plaint dated 29th March, 2012, the Plaintiffs have averred that at all materials, they were the owners of land known as L.R.NO. 1848/3 Kilimambogo measuring 1,263 acres; that the land was allocated to them by the Government so as to re-settle the squatters and that the Ministry of Lands advised them to survey the land.

13. The Plaintiffs are praying for a declaration that they are the owners of the suit property.

14. The 2nd Defendants’ case is that he purchased the suit property from Pan African Credit and Finance Limited (then in Liquidation)pursuant to the Vendor’s statutory power of sale. The 2nd Defendant annexed on his Affidavit the Sale Agreement of 19th September, 2013 and the Indenture of Assignment of 24th November, 2010.

15. I have perused the Indenture of Assignment of 24th November, 2010. The said Indenture was registered at the lands registry on 14th December, 2010, thus conferring on the 2nd Defendant the ownership of the land.

16. The 1st Defendant’s case is that it purchased the suit land from the 2nd Defendant vide an agreement dated 16th August, 2010.  The said Agreement has been annexed on the 1st and 2nd Defendant’s Affidavit.  An Indenture of Assignment between the Defendants has also been exhibited.  The said Indenture was registered on 11th July, 2011.

17. The Plaintiffs have annexed on their Replying Affidavits correspondences from the Ministry of Lands showing that the Ministry was considering the issue of allocating to them the suit property.

18. Considering that the Defendants have not denied that indeed the Plaintiffs’ members are on the suit land, and in view of the letters from the Ministry of Lands acknowledging the Plaintiffs’ requests to be allocated the same land, it will be just and fair if the matter proceeds to full trial to enable the court determine the Plaintiffs’ interests on the suit, land viz-a-viz the Defendants’ title.

19. Indeed the issues raised by the Plaintiffs in respect to the promises that were given to them by the government and the process that was followed by the Defendants to acquire the suit property can only be investigated by this court after trial.

20. The issues raised by the Plaintiffs cannot therefore be said to be without substance or fanciful.

21. In the circumstances, I dismiss the Defendants’ Applications dated 17th July, 2012 and 4th December, 2012 with costs.

DATEDAND DELIVERED AT MACHAKOS THIS 17THDAY OF MARCH, 2017.

OSCAR A. ANGOTE

JUDGE