Mirko Blaettermann (suing through his power of attorney) Shabir Hatim Ali & Public Trustees (suing on behalf of Helmut Koster) v David Mwangi Muiruri, G Hotmann Cotova & Emprires & Partners Investments [2014] KEELC 459 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT MALINDI

LAND CASE NO. 27 OF 2012

MIRKO BLAETTERMANN (suing through his power of attorney

SHABIR HATIM ALI..........................................................................1ST PLAINTIFF

PUBLIC TRUSTEES (suing on behalf of

HELMUT KOSTER..............................................................................2ND PLAINTIFF

=VERSUS=

DAVID MWANGI MUIRURI...........................................................1ST DEFENDANT

G. HOTMANN COTOVA.................................................................2ND DEFENDANT

EMPRIRES AND PARTNERS INVESTMENTS.............................3RD DEFENDANT

R U L I N G

Introduction

The Application before me is dated 27th June, 2013.  In the Application, the Public Trustee is seeking for the following orders:

(a)    That there be a stay of any further proceedings herein pending the final determination of Malindi Chief Magistrate Criminal Case number 345 of 2011.

(b)    The costs to the Application be provided for.

The Application is based on the grounds that the Judgment in criminal case number 27 of 2012 may have a bearing on this suit.

The Applicant's case:

According to the Affidavit of the Assistant Deputy Administrator General, who is the interim personal representative of the Estate of Helmut Koster, there exists a criminal case number 345 of 2011 in which the 1st Defendant has been charged with the forgery of proceedings in Malindi CMCC No. 18Aof 2004 whose outcome will have a bearing on the disposal of this suit.

It is the Applicant's deposition that he needs time to investigate and trace the known relative or next of kin of Helmut Koster who purportedly died in Germany.

The 1st Plaintiff has not opposed the Application.

The Respondents' case

The 1st Respondent, who is also a director of the 2nd Defendant deponed in his Replying Affidavit that the Applicant has not shown the nexus between the party he represents and criminal case number 345 of 2011 to warrant the stay of these proceedings.

It is the Respondents' deposition that the Public Trustee informed this court that he shall not be filing any papers in this matter and that all along, the court has been acting and relying on unsubstantiated allegations of the death of Helmut Koster.

The Respondent finally deponed that civil suits are independent of criminal cases and that in any event, it is the criminal case in the lower court that should be stayed and not this matter.

It is the Respondents' case that the 2nd Plaintiff is being used as a proxy by the 1st Plaintiff in this particular case with a view of continuing to enjoy the interim injunctive orders that were issued in his favour by this court.

The parties filed their respective submissions which I have considered.

Analysis and findings

This suit was commenced by way of a Plaint by the 1st Plaintiff.  In the Plaint, the 1st Plaintiff has averred that the 1st Defendant, with the intention to defraud the 1st Plaintiff, the registered proprietors of the suit property, forged court proceedings and a Judgment in a fictitious suit number Malindi CMCC No. 18 A of 2004.

According to the 1st Plaintiff, the effect of the forged court proceedings, judgment, decree and order was meant to defraud and vest away the property and have the same unlawfully transferred to the 2nd and 3rd Defendants by the 1st Defendant.

The penultimate prayer in the Plaint is for a declaration that the proceedings in the purported Malindi CMCC NO. 18A of 2004 and all the orders therein are null and void and that the Land Registrar, Mombasa do expunge entry numbers 6,7,8, 10 and 11 from the register.

The 1st Plaintiff's claim, as I see it, is that he was dispossessed the suit property vide a dubious and forged court order.

During the hearing of the 1st Plaintiff's Application for injunctive orders, the court posed several questions which included the authenticity of the proceedings in CMCC No. 18A of 2004 and whether, if at all, the lower court  in CMCC No. 18A of 2004 had jurisdiction to deliver a judgment in favour of the 2nd Defendant on 29th March 2004.  The court proceeded to grant an interim order of injunction in favour of the 1st Plaintiff. The court went further and ordered that the Public Trustee be joined in these proceedings to represent the interests of the Estate of Helmut Koster who was said to be dead.

It would appear that Meoli J, on the basis of the evidence that was before her, was not convinced that even if the 1st Plaintiff succeed in his claim, he will be entitled to the entire suit to the exclusion of Helmut Koster or his Estate thus the order to enjoin the Public Trustee in these proceedings.

The 1st Plaintiff having complied with the order of court to join the Applicant, It was incumbent upon the Applicant to investigate and report to the court whether the said Helmut Koster is still alive or he is dead.

However, such investigations cannot go on forever. In the event that Helmut Koster or his Estate is not found, and the court finds that he is entitled to the suit property, the Constitution provides at Article 62(1)(d) that the land shall revert to the public.  This suit can therefore not be stayed on the grounds that the Public Trustee, one year down the line, is still investigating to find out the legal representatives of Helmut Koster. The suit must proceed with or without the said party.

On the issue as to whether I should order for a stay of this suit on the ground that there is an ongoing criminal case in the lower court, I am of the view that the law allows this suit to proceed alongside the criminal matter.  In any event, it will still be in order for any party to rely on the evidence that may or has been produced in the criminal case in this suit and vice versa.

The suit before me is a civil claim whose standard of proof is on a balance of probability unlike in the criminal proceedings where the standard of proof is beyond reasonable doubt. This suit was filed on the basis of the evidence that was in the 1st Plaintiff’s possession and not on the basis of the outcome of the criminal case. I therefore do not see the effect that the criminal case will have on the outcome of this suit considering that the criminal case is in the lower court.

In the circumstances, and for the reasons I have given above, I dismiss the 2nd Plaintiff's Application dated 27th June 2013 with costs.

Dated and Delivered in Malindi this 6th Day of March 2014

O. A. Angote

Judge