Onesmus Kioko Muthama & James Zakayo Muthama (Suing for and on behalf of Wayua Muthama v Paul Kaguma Muthunga , Simon Waweru Muranga , Joseph Maina Mwangi, James Maina Nganga , Benson Mwangi Mbugua, Maurice Gakundi Muriti , Monica Gatakaa Kirunja, James Mugendi Kirunja, Anderson Peter Muchiri Mutuiri, Samuel Wanjahi Wamuroo, Reuben Ndungu Kuria, John Ndai Mwaura, Peter Nganga Mburu , Daniel Kamau Ndungu, Samuel Muchiri Mwangi , Naomi Wambui Ndugo, Ngoima Co-Operative Society Ltd , John Karanja Maara, Phillis Wamucci Munyi, David Kariuki Kimani, John Kimonjo Mbagara & Gilbert Waitti Muchiri [2017] KEELC 3366 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC CASE NO. 37 OF 2014

ONESMUS KIOKO MUTHAMA ……………….………1ST PLAINTIFF

JAMES ZAKAYO MUTHAMA(Suing for and on behalf of

WAYUA MUTHAMA …………………………………….2ND PLAINTIFF

VERSUS

PAUL KAGUMA MUTHUNGA ……………………...1ST DEFENDANT

SIMON WAWERU MURANGA ……………….……2ND DEFENDANT

JOSEPH MAINA MWANGI…………………………3RD DEFENDANT

JAMES MAINA NGANGA …………………………..4TH DEFENDANT

BENSON MWANGI MBUGUA……………..………..5TH DEFENDANT

MAURICE GAKUNDI MURITI ……………...….……6TH DEFENDANT

MONICA GATAKAA KIRUNJA……………….…….7TH DEFENDANT

JAMES MUGENDI KIRUNJA………………………8TH DEFENDANT

ANDERSON PETER MUCHIRI MUTUIRI…........….9TH DEFENDANT

SAMUEL WANJAHI WAMUROO…………...…….10TH DEFENDANT

REUBEN NDUNGU KURIA……………………..…..11TH DEFENDANT

JOHN NDAI MWAURA……………………………..12TH DEFENDANT

PETER NGANGA MBURU …………………………13TH DEFENDANT

DANIEL KAMAU NDUNGU…………………..…….14TH DEFENDANT

SAMUEL MUCHIRI MWANGI ……………….…....15TH DEFENDANT

NAOMI WAMBUI NDUGO…………………….…...16TH DEFENDANT

NGOIMA CO-OPERATIVE SOCIETY LTD …......…17TH DEFENDANT

JOHN KARANJA MAARA………………………….18TH DEFENDANT

PHILLIS WAMUCCI MUNYI…………....…………..19TH DEFENDANT

DAVID KARIUKI KIMANI…………………….....…..20TH DEFENDANT

JOHN KIMONJO MBAGARA …………….……….21ST DEFENDANT

GILBERT WAITTI MUCHIRI …………………........22ND DEFENDANT

RULING

1. By a Notice of Motion dated 3rd July, 2014, the Plaintiffs are seeking for injunctive orders and inhibition restraining dealings in the suit lands against the Defendants on the grounds that they are holders of a Power of Attorney donated by Wayua Muthama, the previously registered owner of Mavoko Town Block 3/2719 which has been subdivided into 38 subtitles constituting the suit lands.

2. According to the Plaintiffs, the sub-division and transfer to the Defendants of the suit land was fraudulent and that it was done by use of forged papers and without the knowledge of the donor and that she still holds the original title of Mavoko Town Block 3/2719.

3. The Application is supported by the Affidavit of Onesmus Kioko Muthama sworn on 3rd July, 2014.

4. The Respondents No. 6, 7, 8, and 9 have opposed the Application via an Affidavit sworn by Monica Gatakaa Kiruja on 10th December, 2014.

5. The 17th Respondent also filed a Replying Affidavit sworn by Anthony Mwangi Maina on 10th September, 2014 who averred that it the 17th Respondent bought the suit land and has taken possession.

6. Defendants Nos. 7, 8 and 9 averred that they bought Mavoko Town Block 3/10481 jointly and got registered as the owners and that they have a Title Deed.

7. The 6th Defendant deponed that he bought Mavoko Town Block 3/10480 and was registered as the owner.  He deponed that as at the time of purchase, there were no caveats or restrictions on the land; that she is a bona fide purchaser for value without notice; that she is not aware of the alleged fraud and that she has taken possession of the land and is dealing with the same without the Plaintiffs’ interference.

8. The Applicant’s advocate submitted that her client was allocated the original land measuring 40 acres by Lukenya Ranching and Farming Cooperative Society Ltd being its member and that she was issued with a Title Deed which she holds to date.  According to counsel, one Veronica Kangwele Kibwana was charged with forgery offences and obtaining monies by false pretences from Shamba Poa Investment Ltd over the sale of the suit land Mavoko Town Block 3/2719 vide Cr. Case No. 407/2013 Mavoko. Counsel submitted that his client did not sell any land to the Defendants.

9. The 6th – 9th Respondents submitted that under Section 27 and 28 of the repealed Registered Land Act, Cap 300, their titles are protected.  They submitted that their titles cannot be rectified or cancelled unless it is shown that they had knowledge of omission, fraud or mistake.

10. They submitted that a prima facie case has not been established nor the irreparable harm that is likely to be suffered by the Plaintiff if the orders are not granted.

11. On balance of convenience, they submitted that since they are in occupation and possession, the same tilts in their favour.

12. The 17th Respondent submitted that it is the registered owner of Block 3/10493, 10494 and 10495; that it holds the titles to the same and that it has taken possession of the said parcels of land.

13. On a balance of convenience, the 17th Respondent submitted that the balance of convenience tilts in its favour because it holds titles and is in possession of the parcels of land.

14. After going through the parties’ Affidavits and the submissions, I find the following issues arising.

a. Whether conditions for grant of an interim injunction have been established?

b. What is the order as to costs?

15. It is not disputed that Wayua Muthama originally owned Mavoko Town Block 3/2719 and was issued with Title Deed on 16th September, 2005 which she still holds.  According to her Affidavit, she got the land from Lukenya Ranching and Farming Co-operative Society Limited by virtue of being a member.

16. Subsequently, Shamba Poa Investment Co. Limited caused the said land to be sub-divided into 34 plots of which 18 were transferred to the Defendants.  The Defendants hold the Title Deeds for various portions and some of them have taken possession and have developed or are developing the said plots.

17. Veronica Kengwele Kibwana has been accused as being the architect of forgery because she allegedly obtained money from the said Shamba Poa Investment Company purporting to sell Block 3/2719 owned by Wayua Muthama. She has been charged in Criminal Case No. 407/2013 Mavoko Law Courts.

18. On the prima facie basis, the Applicants have established a case for the grant of an injunction pending the hearing and determination of the suit.

19. However the Respondents and especially Nos. 6-9 and 17 are on suit land and are holding Titles to the portions they bought and have deponed  that they are bona fide purchasers for value.

20. The court is yet to hear the case to establish the truth.  In the circumstances, the suit property should be preserved pending the hearing of the suit.  The court therefore makes the following orders:

a. Status quo prevailing on the ground in respect to the suit lands be maintained until suit is heard and determined.

b. An order of inhibition be and is hereby issued to stop registration or any dealings in respect of parcels of land known as Mavoko Town Block 3/10475, 10477, 10480, 10481, 10482, 10483, 10484, 10485, 10486, 10491, 10493, 10494, 10495, 10498, 10500, 10501, and 10503 until  this suit is heard and determined.

c. Costs to be in the cause.

DATED AND DELIVERED AT MACHAKOS THIS 17THDAY OF MARCH, 2017.

OSCAR A. ANGOTE

JUDGE