Samuel Mbugua Mwai, Naomi Muthoni Mwai & Josiah Muya Mwai v Josiah Wandiba & Josiah Mwai Muya [2013] KEHC 1820 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT AT NAIROBI

ELC SUIT NO. 618 OF 2011

SAMUEL MBUGUA MWAI…….………..…………..……..1ST PLAINTIFF

NAOMI MUTHONI MWAI…….……………..……………2ND PLAINTIFF

JOSIAH MUYA MWAI………………………...…………..3RD PLAINTIFF

VERSUS

JOSIAH WANDIBA………...………………….………...1ST DEFENDANT

JOSIAH MWAI MUYA………...………………….……..2ND DEFENDANT

RULING

The Plaintiffs are seeking injunction orders from this court against the Defendants restraining them from transferring, taking possession, constructing on and/or interfering with Title No. Githunguri/Githunguri/T776 (hereinafter referred to as the suit property), pending the hearing and determination of this suit. This prayer is in a Notice of Motion dated 7th November 2011 which is supported by affidavits sworn by 1st Plaintiff on 7th November 2011, 31st January 2012 and 10th June  2012. The Plaintiffs are the step-siblings and children of the 1st and 2nd Defendant respectively. They claim that the suit property is their ancestral home having been acquired by their deceased mother and 2nd Defendant, and is where they were born and have lived all their lives.

They further claim that the suit property has been fraudulently transferred by the 2nd Defendant to the 1st Defendant to defeat their claims to it, and to punish them for testifying against their father, who is serving death sentence for murdering their deceased mother. They attached an affidavit from an Advocate who allegedly drew and attested the said transfer of the suit property, wherein he has stated that his signature was forged and denied ever meeting the 2nd Defendant. They further claim that the 1st Defendant has never resided on the suit property, and that they only knew of his title when they received summons from the District Land Registrar of Kiambu District to resolve a boundary dispute concerning the suit property, which summons were attached.

The 1st and 2nd Defendants opposed the Notice of Motion in replying affidavits  sworn on  29th November 2011 and 1st October 2012  respectively. They stated that the Plaintiffs were registered as the owners of  Title No. Githunguri/Githunguri/T776 which belonged to their deceased mother, and that the suit property was registered in the name of the 2nd Defendant who passed a good title to the 1st Defendant as a gift. Further, that the 2nd Defendant willingly signed the transfer which was annexed. Also annexed were copies of the application for the consent of the land control board, the letter of consent dated 18th June 2008, and of the title deed issued to the 1st Defendant on 1st July 2008.

The parties were directed to file written submissions, which they relied upon for the ruling herein.  The Plaintiffs’ counsel in submissions dated 10th June 2013 argued that they had shown that that the transfer of the suit property to the 1st Defendant was forged, and that they have shown a prima facie case as they are being deprived of their mother’s share of the ancestral home. The counsel relied on the decision in Mrao vs First American Bank (2003) KLR 125in this respect. Further, that they will suffer irreparable loss as the 1st Defendant has another land on which he lives. Lastly, that the balance of convenience is in the Plaintiffs’ favour as they have lived on the suit property since they were born, and there is a real threat that they could be evicted by the 1st Defendant.

The Defendants’ counsel filed submissions dated 24th June 2013 in which he argued that the 2nd Defendant had the right, legally and constitutionally, to transfer the suit property to the 1st Defendant as he did. Further, that the 2nd Defendant as the rightful owner has not alleged any fraud, neither has he been convicted of any fraud. Lastly, the counsel submitted that the Plaintiffs had not established a prima facie case as their prayers have been overtaken by events given that the suit property has been already transferred to the 1st Defendant who is in possession. It was also argued that their prayer in the Plaint filed herein for rectification of the title to the suit property cannot stand without a prayer for nullification of the same.

I have carefully read and considered the pleadings, evidence and arguments made by the parties herein. The issue for determination is whether the Plaintiffs have met the requirements stated in Giella vs Cassman Brown & Co Ltd,(1973) EA 358as to the grant of a temporary injunction. These are that the applicant must establish a prima facie case, and that he or she would suffer irreparable loss which may not be compensated by an award of damages. If the Court finds that the two requirements are not satisfied, it may decide an application on the balance of convenience.

In determining whether the Plaintiffs have established a prima facie case I have considered the Plaint filed herein dated 7th November 2011, in which they seek to be declared owners of the suit property. The 1st Defendant has produced a title to the suit property in his name and claims it was gifted to him by the 2nd Defendant. The Plaintiff’s ownership claim is based on the suit land being ancestral land, and it is not disputed that they are in possession of the suit property as shown by the summons they annexed dated 30th August 2011 on the boundary dispute over the suit property, in which it is claimed they have encroached on the said land. The family relationship between the Plaintiff and Defendants is also not disputed, and raises the possibility of a trust relationship.

It is thus my view that arising from the circumstances of this case, the Plaintiff’s Notice of Motion needs to be decided on the basis of a balance of convenience. The factor that tilts the balance in favour of the Plaintiffs is that they are currently in possession and occupation of the suit property. However, I am in this regard alive to the fact that while it may be necessary to preserve the suit property pending the hearing of the suit herein, it is also important that such hearing proceeds expeditiously as the 1st Defendant is the registered owner of the same, so that the respective rights of the parties to the suit property if any, are determined with finality.

The Plaintiff’s Notice of Motion dated 7th November 2011 is accordingly allowed only to the extent of the following orders:

That the status quo to be maintained pending the hearing and determination of the suit filed herein or until further orders shall be as follows:

The Plaintiffs and the Defendants either by themselves, or through their servants, agents and/or employees, shall not sell, transfer, and/or in any manner dispose of or alienate, or undertake any further construction or development on property known as Githunguri/Githunguri/T776.

The Defendants shall not in any manner interfere with the Plaintiffs’ occupation and possession of the property known as Githunguri/Githunguri/T776

The Plaintiffs shall take the necessary steps to set the suit herein for hearing within one year of the date of this ruling, and in default the status quo orders hereinabove shall lapse.

The costs of the Plaintiffs’ Notice of Motion dated 7th November 2011 shall be in the cause.

Orders accordingly.

Dated signed and delivered in open court at Nairobi this ____17th___ day of _____October____, 2013.

P. NYAMWEYA

JUDGE