SIMON MURIITHI MAINA (suing on his behalf and on behalf of 33 others) v ANTONY NZUKI & 2 others [2012] KEHC 583 (KLR)

REPUBLIC OF KENYA

High Court at Machakos

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SIMON MURIITHI MAINA(suing on hisbehalf and on behalf of 33 others..............................................................PLAINTIFF/RESPONDENT

VERSUS

1. ANTONY NZUKI

2. EMMANUEL KAKULA(both being sued in the capacitiesas administrators of the estate of the late RAPHAEL KAKULA NZUKI)

3. DIVISIONAL INTERGRATED DEVELOPMENTPROGRAMMES COMPANY LIMITED (DIPS).................................................DEFENDANTS

R U L I N G

Before me is an application by way of Notice of Motion dated 8th April 2011 filed by the 1st defendant Antony Nzuki under Order 40 Rules 1 (a) 2, and 4 (1) of the Civil Procedure Rules and Sections 1A, 1B, and 3A of the Civil Procedure Act (Cap 21). It has six (6) prayers three (3) of which have been spent as follows:-

1. (Spent).

2. (Spent).

3. (Spent).

4. THAT an injunction be issued pending the hearing and determination of this suit restraining the plaintiff/respondents, their agents, servants, contractors and all each of them whether by themselves or otherwise howsoever from entering all that parcel plot of land known as LR No. 12715/197 or any part thereof and constructing or putting up any form of structures thereon, or in any other way interfering with the said land.

5. THAT the plaintiff/respondents do pay the costs of this application.

6. THAT such further or other orders be made as may seem just to the Honourable Court.

The application has grounds on the face of the Notice of Motion. The grounds are, in summary, that the land belonged to the late Raphael Kakula Nzuki (deceased) who had entered into a sale agreement in 2002 with the third defendant; that the 3rd defendant materially breached the agreement by failing to pay the agreed purchase price and in 2005 the deceased filed Nairobi HCCC No. 1157 of 2005 seeking to evict the 3rd defendant from the subject property; that the deceased died in 2007 before conclusion of the said suit; and that the plaintiffs herein, claimed to have bought the suit property from the 3rd defendant and had wrongfully and unlawfully commenced hurried construction of permanent buildings/houses on the suit property.

The application was filed with an affidavit sworn by Anthony Nzuki, the 1st defendant on 8th April 2011. The said affidavit gives the background information to the application. A further affidavit sworn by the same deponent on 14th April 2009 was filed. This further affidavit annexes photographs of the land and housing developments made thereat.

The application is opposed. A replying affidavit sworn on 19th April 2011 by Simon Muriithi Maina, the 1st plaintiff was filed. It was deponed, inter alia, that the 3rd defendant sold the plots to him and 33 other people; that the 3rd defendant informed the lawyers acting in the sale transaction that he possessed the original grant to the property which was deposited with him by the deceased; that innocent purchasers had invested heavily on the plots; that the suit that is Nairobi ELC No. 1636 of 2007 which had been filed by the deceased against the 3rd defendant had been dismissed on 22nd March 2007 for non-attendance; that the orders sought herein were late and belated; that the plaintiffs (as purchasers) had taken possession of the land since 2002 and it was therefore not true to say that there was hurried construction of houses on the land.

A replying affidavit sworn on 18th April 2011 by Boniface Mutua, the Managing Director of the 3rd defendant, was also filed. It was deponed that in 2002 the deceased (Raphael Kakula Nzuki) entered into a sale agreement with the 3rd defendant at an agreed price of Kshs.1,600,000/=; that the purchase price was subject to the Law Society Conditions of Sale (1989); that until the time of the death of the deceased, he had not signified his readiness to complete the sale transaction or supply the completion documents to allow the 3rd defendant pay the balance of the purchase price; that it was the deceased who breached the sale agreement though the 3rd defendant had paid him Kshs.957,500/= as part payment of the purchase price; that since the 3rd defendant had purchased LR No. 12715/197, he subdivided the same and sold portions thereof to the plaintiffs; that it was not true that the plaintiffs herein had wrongfully and unlawfully entered into the suit property; that according to the sale agreement between the deceased and the 3rd defendants a remedy of payment of 3% interest by a defaulting party was provided; that the houses were constructed over a period of five (5) years; and that the 1st and 2nd defendants’ counterclaim herein had no chance of success.

A supplementary affidavit sworn by Anthony Nzuki on 3rd May 2011 was filed in response to the affidavits in opposition of the application. It was deponed that the affidavits of Boniface Mutua Musyoki and Simon Muriithi Maina contained falsehoods and were misleading. That the 3rd defendant had not yet completed payment of the agreed purchase price. That the 3rd defendant had not shown that he had paid any amount over and above Kshs.160,000/=. That in 2005, the deceased Raphael Kakula Nzuki filed Nairobi Civil Suit No. 1157 of 2005 seeking the eviction of the 3rd defendant from the suit land. That despite the filing of the said suit, the 3rd defendant, went ahead and subdivided the land. That the plaintiffs had not told the court whom, among them, was a resident in the structures which were unlawfully constructed on the land. That Antony Nzuki (the 1st defendant) was not privy to any agreements between the 3rd defendant and the plaintiffs.

The 1st defendant filed written submissions on 12th October 2011 through counsel Nzei & Company Advocates. The plaintiffs filed their submissions on 24th November 2011 through their counsel M/s Kuloba & Wangila Advocates. The 3rd defendant filed written submissions on 26th October 2011 through counsel M/s Mbindyo & Company. The 1st defendant also filed a reply to the submissions on 10th May 2012. I have perused all the written submissions filed.

On the hearing date, both Ms. Menya for the 1st defendant, and Mr Mbindyo for the 3rd defendant addressed the court. Mr Mbindyo also held brief for Mr Kuloba for the plaintiffs.

I have also considered the written and oral submissions.

This is an application for an interlocutory injunction pending the hearing and determination of the suit. The suit was filed by 34 plaintiffs who are the respondents in the application. The applicant is the 1st defendant in the main suit. The prayers sought in the application are against the plaintiffs. The 3rd defendant who sold land to the plaintiffs has filed an affidavit and has been represented by counsel in support of the plaintiffs’ position against the 1st defendant.

The parameters for consideration by a court in an application for an interlocutory injunction are well settled. In Giella –vs- Cassman Brown Ltd (1973) EA 358, the Court of Appeal for East Africa gave three requirements. Firstly, an applicant has to demonstrate a prima facie case with probability of success. Secondly, an injunction will not normally be issued unless the applicant will otherwise suffer irreparable loss which cannot be adequately compensated in damages. Thirdly, if the court is in doubt, it will decide the matter on the balance of convenience.

The applicant, who is the 1st defendant in the case, is the administrator of the estate of the deceased Raphael Kakula Nzuki, who was the registered owner of the land in question. The deceased entered into an agreement for sale of the subject land with the 3rd defendant which was not completed until the deceased died. The 3rd defendant took possession of the land during the lifetime of the deceased. He later subdivided the land and sold the smaller plots to the plaintiffs, some of whom are currently developing the plots. The letters of administration in the estate of the deceased were actually confirmed on 9th June 2009. The subject land formed part of the assets of the estate, and same was distributed among beneficiaries. The plaintiffs are purchasers of portions of the subject land from the 3rd defendant. The purchase arises from an incomplete sale agreement between the 3rd defendant and the deceased. The 1st defendant who has been sued by the plaintiffs in the matter herein, now wants a temporary injunction to issue against the plaintiffs who have brought him to court in the same matter.

In my view, the 1st defendant has demonstrated a prima facie case with probability of success. A prima facie case is one that may or may not succeed. It is an arguable case. I find from the facts disclosed to me that the 1st defendant has an arguable case. I therefore find that the 1st defendant has satisfied the 1st requirement in an application for an interlocutory injunction.

Will the 1st defendant suffer irreparable loss if an injunction order is not granted? My answer is yes. Once the subject land is fully developed with expensive houses, it will never return to the same previous state. The damage caused will not be reversible. It is not possible to compensate that loss in damages, if for example the case is determined in favour of the 1st and 2nd defendants. Therefore, in my view, if the injunction is not granted, the 1st defendant as administrator and beneficiary will suffer irreparable loss which is not capable of being compensated in the form of damages.

In my view also, the balance of convenience is in favour of the 1st defendant. He and the other administrator currently have the documents of title in their favour. The said titles devolved through succession. Unless the court subsequently decides otherwise, the pendulum is in the 1st defendant’s favour.

Taking into account the totality of the matter, I am persuaded that the 1st defendant has satisfied the requirements for the grant of a temporary injunction. Consequently, I allow the application and grant prayer 4. The costs of the application however, will be in the cause.

Dated and delivered this 22ndday ofNovember 2012.

George Dulu

Judge

In the presence of:

Both 1st and 2nd Defendants present in person

Plaintiff absent

N/A for 3rd Defendant/Applicant

Nyalo – Court clerk