Miriam Mukami Ndwiga v Simhi Azmon & James Maroko Osiemo [2015] KEELC 233 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO.226 OF 2014

MIRIAM MUKAMI NDWIGA............................PLAINTIFF/APPLICANT

VERSUS

SIMHI AZMON

JAMES MAROKO OSIEMO...........................DEFENDANTS/RESPONDENTS

R U L I N G

What is before me is the Application by the Plaintiff dated 2nd December 2014 seeking for the following orders:

(a)     THAT this matter be certified urgent and service of the same be dispensed with in the first instance.

(b)     The Hon. Court be pleased to order for the caveat/inhibition to be placed over parcel No.1705/359 (original No.1705/84/24) pending the hearing of this application interpartes.

(c)     That the Hon. Court be pleased to issue any order of injunction restraining the Defendants, their agents, assigns or anybody acting on their behest from entering, evicting, trespassing or in any other manner interfering with the Plaintiff's peaceful and utilization of parcel No.1705/359 (original No.1705/84/24) until this application is heard interpartes.

(d)     That this Hon. Court do confirm prayers, a, b, and c above until this suit is heard and determined.

The Application is premised on the grounds that the Plaintiff and her family lives on the suit land; that the 2nd Defendant who is the Plaintiff's husband has sold to the 1st Defendant the family land and that the Plaintiff does not have any other place to go if evicted.

In his Replying Affidavit, the 2nd Respondent deponed that the 1st Defendant offered him a friendly loan of Kshs.400,000; that he was unable to refund the said amount as agreed and that the 1st Defendant through administration authorities intimidated him and that he signed the transfer documents out of fear.

According to the 2nd Respondent, the transfer of the suit property was not freely executed but was obtained through duress.

The 2nd Defendant denied ever attending the Land Control Board to obtain the consent to transfer the property.

On his part, the 1st Defendant deponed that he is the registered proprietor of the suit property having purchased it from the 2nd Defendant at a consideration of Kshs.417,000.

According to the 1st Defendant, the 2nd Defendant sold the suit property out of his own volition.

The parties' advocates filed brief submissions. The said submissions are a reiteration of the depositions in the affidavits.  I have considered the said submissions and the authorities.

It is not in dispute that the 2nd Defendant, who is the Plaintiff's husband was registered as the proprietor of the suit property on 14th July 2008.

According to the copy of the Certificate of Title annexed on the Application, the suit property was transferred in favour of the 1st Defendant on 18th June 2014.

Although the 2nd Defendant has annexed the sale agreement dated 3rd June 2011, between himself and the 1st Defendant in respect of the suit property, the 2nd Defendant has denied that he ever signed the agreement.

The 2nd Defendant has deponed that he signed the transfer document under duress and that the transfer of the suit property to the 1st Defendant was fraudulently done.

The 1st Defendant has not stated whether indeed a spousal consent was obtained before the suit property was transferred in his favour.  In view of the provisions of section 93(3) and (4) of the Land Registration Act,  a spousal consent is required before land can be transferred.

Indeed, in the absence of prove that the Plaintiff's consent was sought and obtained before the transfer of the suit property to the 1st Defendant, and in view of the 2nd Defendant's allegation that he signed the transfer document under duress, I find and hold that the Plaintiff has established a prima facie case with chances of success.

For those reasons, I allow the Application dated 2nd December 2014 in the following terms:

(a)     An order of injunction be and is hereby issued restraining the Defendants, their agents, assigns or anybody acting on their behest from entering, evicting, trespassing or in any other manner interfering with the Plaintiff's peaceful and utilization of parcel of land number 1705/359 (original number 1705/84/24) pending the hearing of the suit.

(b)     The costs of the Application to be  in the cause.

Dated and delivered in Malindi this  25th day of   September2015.

O. A. Angote

Judge