Richard Mark Binns & Felicity Ann Binns v Simeon Kazungu Baya, Ralph Kalama, Chief Land Registrar & Four Islands Bay Limited [2014] KEHC 4165 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

CIVIL CASE NO. 33 OF 2014

RICHARD MARK BINNS

FELICITY ANN BINNS...............................................PLAINTIFFS

=VERSUS=

1. SIMEON KAZUNGU BAYA

2. RALPH KALAMA

3. THE CHIEF LAND REGISTRAR

4. FOUR ISLANDS BAY LIMITED....... .................DEFENDANTS

R U L I N G

Introduction:

1. What is before me is the Plaintiffs' Application dated 3rd March, 2014 seeking for the following reliefs:

That this Honourable Court be pleased to grant an interim injunction restraining the 2nd, 3rd and 4th Respondents by themselves, agents, employees or otherwise howsoever from entering upon, fencing, disposing of, alienating, encumbering, charging, interfering with, transferring and/or in any other manner howsoever dealing with all that property known as Land Reference Number Kilifi/Jimba/1146 pending the hearing and determination of this suit.

Costs of this application be provided for.

2. The Application was served upon the 4th Defendant by way of  substituted affidavit by advertisement.

The Plaintiffs’/Applicants’ case:

3. The 1st Plaintiff/Applicant has deposed that he purchased Kilifi/Jimba/1146; that he surrendered the title of the said title for the purpose of consolidation and that the said title either got lost or was deliberately kept by the 1st Defendant with the aim of depriving him the property.

4. According to the 1st Plaintiff's Affidavit, the 1st Defendant allegedly sold the portion of the suit property to third parties notwithstanding the fact that he (the Plaintiff) had released the title for parcel of land number Kilifi/Jimba/1146 to the Defendant to enable him amalgamate with another portion.

5. The Defendants did not file a response to the Application despite having been served.

6. In his oral submissions, the Plaintiff informed the court that he entirely relies on the Supporting Affidavit and the annextures.

Analysis and findings:

7. The 1st Plaintiff has annexed on his Supporting Affidavit an affidavit which he swore on 3rd March, 2014, the same he filed the current Application explaining how he lost the Title Deed in respect to Kilifi/Jimba/1146 necessitating the fraudulent dealings in the property.

8. The Plaintiffs have also annexed an agreement between Mohamed Songora, on behalf of his mother, and the Plaintiff for the sale of Kilifi/Jimba/1146 for kshs. 1. 5 million dated 4th April 2003.  The agreement was witnessed by Simeon Kazungu Baya, the 1st Defendant.

9. Also annexed on the Affidavit is the notice by the Kilifi District Land Registrar indicating the loss of the Title Deed for Kilifi/Jimba/1146 which was by then registered in the name of the 1st Plaintiff. The notice is not dated.  The copy of the Titled Deed that was issued to the 1st Plaintiff on 15th July, 2002 has also been exhibited.

10. The Defendants did not file any Replying Affidavit to rebut the Plaintiffs assertion that indeed the 1st Plaintiff was the registered proprietor of Kilifi/Jimba/1146 before the Title Deed was either lost or surrendered for consolidation. Consequently, I find that the Plaintiff has established a prima facie case with chances of success. The Plaintiff is also likely to suffer irreparably if the injunction order is not given considering that the 1st Plaintiff bought the suit property for valuable consideration.

11. For the reasons I have given, I allow the Plaintiffs' Application dated 3rd March, 2014 in terms of prayers number 3 and 5.

Dated and delivered in Malindi this 4th  day of July,2014.

O.A. Angote

Judge