Teresiah Wambui Njuguna v Emma Wangari Wangui, Joseph Kinyanjui Muthoni, Joyce Muthoni Waithaka, Registrar of Titles, Thika District Land Registry & Kenya Commercial Bank [2021] KEELC 1856 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT  AND LAND COURT

AT THIKA

ELC CASE NO. 39 OF 2020

TERESIAH WAMBUI NJUGUNA..............................PLAINTIFF/ APPLICANT

VERSUS

EMMA WANGARI WANGUI.........................1ST DEFENDANT/RESPONDENT

JOSEPH  KINYANJUI  MUTHONI..............2ND  DEFENDANT/RESPONDENT

JOYCE  MUTHONI WAITHAKA................3RD  DEFENDANT/RESPONDENT

REGISTRAR OF TITLES,

THIKA DISTRICT LAND REGISTRY.........4TH  DEFENDANT/RESPONDENT

KENYA COMMERCIAL BANK...................5TH  DEFENDANT/RESPONDENT

RULING

The matter for determination is the Notice of Motion Application dated 15th June 2020, by the Plaintiff/ Applicant seeking for orders that;

1. That a permanent injunction do issue restraining the Defendants/ Respondents whether  by themselves, or whosoever  from trespassing, alienating occupying, charging, transferring  or otherwise dealing  with Ruiru/Kiu Block  2/ 5874 and Ruiru/ Kiu Block  2/5875both measuring approximately  0. 0410 Ha located at Ruiru Township  Kiambu County  pending the hearing and determination of this suit

2. That the  following entries  entered in the green card as hereunder  be cancelled  by the 4th Defendant

-Entry  No. 3 done  on 8th July 2014, to the 2nd Defendant be cancelled

- Entry No. 5  done on  6th  May 2015,  to the 3rd Defendant be cancelled

-Entry Numbers  6 and 7  entered on 6th May 2014,  and 19th November 2016,  be cancelled and the  1st Defendant  be compelled  to substitute  the Plaintiff’s title  with her own security  at the Kenya Commercial Bank Limited.

3.  That the Plaintiff be allowed to sell the 1st Defendant’s house located at Kenyatta Road  which was built out of the proceeds  of the sale of  Ruiru/Kiu Block 2/5874 and Ruiru/Kiu Block 2/5875.

4. That the costs be provided for by the Defendants/ Respondents

The Application is premised on the grounds that after the subdivision of Plot Number 3919, by the  Plaintiff, plots No. Ruiru/Kiu Block  2/5874 andRuiru Kiu Block 2/5875, were created and entry number  1 was done  on the green card on 2nd April  2008, in the  name of the Plaintiff/ Applicant. That upon compliance with  requisite steps of conveyancing, two titles were issued  to the Plaintiff/ Applicant  being L.R 2/5874 and 2/5875, as  per entry No. 1 on the green card  and the somewhere among  the ten issued to the Plaintiff  after subdivision.  That the said subdivision is indicated in the mutation form dated 6th March 2008,  while at the back of the said form,  a sketch  on Development Plan  is drawn, showing how the Plaintiff carried out the subdivision.

That  in November 2013, the  1st Defendant visited the Plaintiff’s shop, who mentioned that she  was rushing to the Thika Lands Registry  to conduct searches of her two plots  to confirm status, as she had already sold them to Lucy Thua  and needed to transfer the same to her.  That  the 1st Defendant indicated to the Plaintiff that she was also headed there and as she worked  at the Lands office, she could assist her with the searches. That the Plaintiff/Applicant gave the 1st Defendant/Respondent  copies of her titles,  but that the 1st Defendant informed her that because of fraud, a search could only  be done at the Thika Lands Registry if one  produced an original title, to which the Plaintiff/ Applicant  handed over the originals to be assisted as the 1st Defendant/ Respondent  was an official at the Thika Land Registry. Further that  the 1st Defendant/ Respondent  took both titles  but did not return as promised and when the Plaintiff/ Applicant  inquired on the fourth day the 1st Defendant/ Respondent  went to the Plaintiff’s/ Applicant’s  shop and handed over  fake titles with a remark  that the 1st Defendant/ Respondent  discovered  that both titles  had exchanged hands and therefore no searches were carried out..

Further that the Plaintiff took the fake titles oblivious of any illegal changes that had been done by the 1st Defendant/ Respondent. That the Plaintiff/ Applicant having sold the  two parcels in 2013, the purchaser took  sometime to formalize the purchase,  but in2019,the purchaser resurfaced and on conducting a search to enable  her lodge the transfer papers at the Thika   Lands Registry, the  Plaintiff/Applicant  discovered  that the titles which were handed over to her by the 1st Defendant/ Respondent   were  fake and that  the  1st  Defendant/ Respondent  used the Plaintiff’s original and genuine  titles to defraud the  Plaintiff . That upon investigations being carried out by the  Police from Ruiru Police Station, it was discovered that the 1st  Defendant/ Respondent  duped her husband, the 2nd Defendant  and transferred the Plaintiff’s plots  to the 2nd Defendant/ Respondent, which the 2nd Defendant/Respondent  sold without knowing  how the  said two titles  were registered under her name. Further that at the Ruiru Police Station, the 2nd Defendant informed the Police  that the 1st Defendant/Respondent,  had  informed him that the 1st  Defendant’s brothers  were ganging  up with a view  to grab her two plots,  which her father had bequeathed to her  and therefore needed to be assisted by transferring  the two plots  to the 2nd Defendant’s/Respondent’s name who later sold them to the  3rd Defendant and the same have since been charged to the 5th Defendant.

That the  Plaintiff/ Applicant  did not enter into any  Contract with the 2nd  Defendant/ Respondent   nor executed any Sale  Agreement with the 2nd Defendant/ Respondent   nor transfer  as no consideration was paid  by the 2nd Defendant to the Plaintiff  and the Plaintiff did not know the 2nd Defendant. That the 1st Defendant/ Respondent  is solely responsible  for forgeries, manufacturing of documents, effecting the same and finally  selling the Plaintiff’s  two plots, whose proceeds was utilized to build her residential  house along Kenyatta Road, at Ruiru.

That the Plaintiff/ Applicant  for a long period of time  has known the 1st Defendant/ Respondent   as an official  at the Thika lands office  and upon that trust,  handed over  her two titles  to the 1st  Defendant  with only the hope of being assisted  with official searches. That out of the 10 plots,  which were as a result of  the subdivision, the Plaintiff sold 8 plots without any issue  save for the two which  she handed over the original titles to the  1st Defendant/ Respondent .

In her Supporting Affidavit Teresiah Wambui Njuguna  averred that  in 2008 she carried out subdivision of her  property to wit L.R Ruiru  Kiu Block  2/3919,in which 10 plots were created and she surrendered the mother titles. That she sold the 8 plots of land and the two plots  she sold to Lucy Thua, as per  the sale agreement dated 15th May 2006,  to which the full purchase price was duly paid and since the purchaser was transferred, she took too long to pick the original titles. She denied ever selling the two plots to the 2nd Defendant  or ever seeing him before  until he was summoned to the Police Station.

The Application is opposed and the  5th Defendant/ Respondent  filed grounds of opposition  dated 6th July 2020, to the  Notice of Motion Application on the grounds that;

1. The Motion as taken out is misconceived, incompetent an d fatally defective  as it seeks final orders  in the interlocutory stage. It is trite that  no final orders  can be issued at  the interlocutory stage.

2. The Motion  and the entire suit  fails to disclose  any cause of action  against the 5th Defendant /Respondent it follows therefore that  the Application and the entire  suit as  framed as against  the 5th Defendant/ Respondent  is incurable defective  and ought to be struck out in limine.

The 2nd Defendant/Respondent   Joseph kinyanjui  Muthoni swore a Replying Affidavit on  27th July 2020, and averred  that he did not participate  in or issue  consent to  Emma Wangari  Wangui  to change land  title documents mentioned in the Plaintiff’s/ Applicant’s  Application. That the 1st Defendant/Respondent  undertook  the land transfer  alleging fears  that her relatives would possess the land in question  against her will, which at the time he believed to be true. Further, that together with the 1st Defendant/Respondent, they undertook a sale agreement with  Joyce Muthoni  Waithaka,  but they did not conclude the transfer. That he did not undertake any  other transaction  to facilitate the transfer  of land to Teresiah  Wambui Njuguna and Joyce Muthoni  Waithaka.

The 5th Defendant /Respondent through  Bonnie Okumu,  its Director of Legal Service  swore a Replying Affidavit on  22nd July 2020,and averred  that the entire Application is defective as the Court  has no jurisdiction  to award the final orders  sought at the Interlocutory stage. The Plaintiff/ Applicant  has not met the threshold  set by law to grant the orders  and the suit against the  5th Defendant is incompetent. That  it raises eyebrows how the Plaintiff / Applicant indicates that  the subdivision was conducted in2008,  and the sale for the last two parcels of land  was conducted in 2006  and that a perusal of the  agreement  reveals that the full purchase price had been paid by then. He averred that the  5th Defendant’s/ Respondent’s  position is that  it conducted due diligence  in line with the applicable laws to proceed and charge  the suit properties. That as per the bank’s records, one Joyce Muthoni  Waithaka,is the registered owner of the suit properties and the  said Joyce Muthoni applied for a bank loan and the bank  engaged the Law Firm of  Njoroge Kugwa Advocates,  who conducted due diligence  and the  bank advanced the loan as secured by the titles. That the bank only registered interest is Kshs. 2,000,000/=  on each parcel  and the titles are only but a security . That according to the bond  to attend Court, the  Plaintiff/ Applicant   has been aware of  all the charge of procuring  execution  from 2018,and never took any action until 15th June 2020. That the  Plaintiff/ Applicant has  indicated that she has been labelled as an accomplice  in Criminal Case No. 3825 of 2018, and granting  the orders sought  would mean that the Court is granting an advantageous position to  a suspected  accomplice in  appending criminal case. That it is immature to preempt the results of the criminal investigations and the Plaintiff/Applicant has not made out a proper  case for the award  of the orders being sought and the Plaintiff shall not suffer any prejudice  if the Application is  disallowed,  but the 5th Defendant/ Respondent  stands to suffer immeasurable damages.

The 2nd Defendant/ Respondent Joseph Kinyanjui  Muthoniswore a  Further Affidavit on 2nd September 2020 and averred  that in 2014, the 1st Defendant/ Respondent  informed him that her father  had given her two plots  and her uncles were teaming up ready to defraud her  and he should assist her in securing the same and  informed him that she needed to transfer  the same into his name. He averred that he never attended   any Land Board with a view to be issued  with a consent to transfer,  but after three weeks, she showed him  two titles bearing  his name, but he wondered how she managed to transfer the plots without him signing any documents. Further, that after a few months the 1st Defendant/ Respondent   informed him that she had gotten a  purchaser and  sale agreement was prepared which he signed selling  the two plots to the 3rd Defendant  at an agreed price of Kshs.3,470,000/=. That the 3rd Defendant/ Respondent paid the same to his bank account  at Family Bank, a total of  Kshs.3. 400,000/=.That  on 3rd February 2015, he transferred Kshs.1,330,000/=  to the 1st Defendants/ Respondent’s  account  and on 19th February 2015, he transferred Kshs.1,200,000/=to the 1st Defendants account . Further that on 29th December 2015, he withdrew Kshs.970,000/= after he was arrested by Juja  Police  under the 1st Defendant’s instructions  and as the Police officer were watching he handed over the cash to the 1st Defendant and they went back to  Juja Police Station  for clearance, which the 1st Defendant/ Respondent indicated.

That after several years, the   Police called  him and asked him whtheer he had bought two plots from the Plaintiff and he indicated he had not  to which they showed him a copy of the  agreement between  him and the 3rd Defendant and he informed them  that the plots had been given to him by the 1st Defendant/ Respondent. That apart from the sale agreement, he never signed nor obtained the transfer. Consent to transfer, copy of his ID, PIN, Passport. That he only signed the agreement, but no subsequent documents and was not aware how the 3rd Defendant got them.

The 1st Defendant  Emma Wangari  Wangui swore a Replying Affidavit  on 1st July 2020,and averred that   the person  who effected the transfer on by the Plaintiff  is Lucy Thua,being a different person and Identity  from her. That she is unaware of the Plaintiff’s dealings and engagements and that the Plaintiff/ Applicant  has not demonstrated anything to show  that she said that she was a lands officer. That the Plaintiff’s/ Applicant’s statement is skewed and  full of false allegations and that she has never been an employee  at Thika Lands Office. She denied undertaking any role on behalf of the Plaintiff and she further averred that a criminal case  at the Chief Magistrates Court exonerated her . That the allegations are meant to taint her repute and that the 2nd Defendant and the Plaintiff are well known to each other  and are driving the suit to settle relationship scores. That her signature appear on documents which she never gave nor signed any spousal consent and she had reported the said acts to the Police. That the Plaintiff and the 2nd Defendant/ Respondent are well known and lived  in the Plaintiff’s/ Applicant’s  residence over  the period up to 17th June  2018. She opposed the selling of her house as she did not feature  in any role as alleged by the Plaintiff/ Applicant   and that the  Thika Chief Magistrates Court did find her  innocent.

The Plaintiff Teresiah  Wambui Njugunaswore a  Supplementary Affidavit  on 9th September 2020,and averred that  the Application  and entire suit against  the 5th Defendant / Respondent  is  proper as 5th Defendant failed to  conduct proper and thorough due diligence. That  all parcels of lands were  sold when the  Mutation form  was duly executed and  titles were issued and the issue before the Court is how  the two plots were transferred  from the Plaintiff  to the 2nd Defendant/ Respondent  and finally 3rd Defendant/ Respondent  and eventually a  facility granted  to the 3rd Defendant  by the 5th Defendant.  That if the 5th Defendant/Respondent  conducted due diligence, it  would have  noticed serious errors  on the documents  purported/ effected transfer  from the Plaintiff/Applicant   to the 2nd Defendant/ Respondent  and finally 3rd Defendant. That the 3rd Defendant has not shown how she bought  the two plots from her. That she has been advised by her Advocates, which she advise she believes to be true that the  short span of transfer as it appears on the  green card from the 2nd to 3rd Defendant/ Respondent  would have triggered a credible lending institution  to request for more documents from the  parties for verification. That she has never been labeled as an accomplice, rather a prosecution witness and that the criminal case has been withdrawn under Section 87(a).  That she was only interrogated by the Police when the purchaser Lucy  Thua, reported the matter  at Ruiru Police Station and that is when she had learnt of the exchange. That where there are serious issues like  illegal transfer, forged signatures  on documents, the  Court has discretion  to preserve the said plots,  till the main suit is heard and determined. That the two plots are charged by the 5th Respondent through forged documents  which the 5th Defendant relied on  to grant  facility  to the 3rd Defendant/Respondent.

The 3rd Defendant/Respondent  Joyce Muthoni  Waithaka filed a  Replying Affidavit sworn on  5th October 2020 and  averred that the 2nd  Defendant/ Respondent indicated to  her that he is the legal  owner of the suit properties as evidenced by the copies  of the titles.  That on 16th February 2018, she purchased  the parcels of land from  the  2nd Defendant vide a Sale agreement that was duly  executed  by the  2nd Defendant  at an agreed price of Kshs. 3, 600,000/=  of which the sum of Kshs. 2, 600,000/=was paid by  funds transfer from bank  at the time of signing the agreement and the 2nd Defendant  acknowledged receipt of the  same. Further that  she is aware that the balance of the purchase price being Kshs. 1,000,000/=  was paid to the vendor on the completion date and it was when the 2nd Defendant/ Respondent  obtained the Land Control Boards Consent to transfer  and handed over to her the  completion documents. That on18th March 2018,  she paid to the 2nd Defendant Kshs. 1,000,000/= being  final payment . That she has never met the 1st Defendant/Respondent  and she is a stranger to all the averments raised by the  2nd Defendant/ Respondent.  She sought that the suit against her be dismissed.

The 1st Defendant Emmah Wangari  Wangui  swore a  Supplementary Affidavit on 5th October 2020,and averred that  the 2nd Defendant is giving falsified information  with no basis calculated at  evading liability  for his actions. That the 2nd Defendant/Respondent  intention to take over the land  in absence of any due diligence was a scheme to  defraud the Plaintiff. That   she was not  involved in any arrest of the 2nd  Defendant/ Respondent. Further  that the 2nd Defendant/ Respondent never complained of his documents being used, a clear demonstration that he was the master mind of the plot .

The Application was canvassed by way of written submissions which the Court has carefully read and considered. The Court has also read and considered the instant  Application, affidavits  and the relevant provisions of the law and finds that the issue  for determination is whether the Plaintiff/ Applicant is entitled to the orders sought.

In her   Notice of Motion Application, the Plaintiff/ Applicant has  sought for various orders  amongst them; A permanent Injunction, cancellation of   entries in the green  card in favour of the 5th Defendant/ Respondent and  an order to sell  the 1st Defendant’s/ Respondents  house  located at Kenyatta Road,  which was built out of the proceeds  of the sale of   the suit property.

The instant Application is an interlocutory Application and that the  Plaintiff has also filed a Plaint in which final orders would be granted. The Plaintiff/ Applicant’s claim over the suit property is the alleged fraud and she is seeking to have the  3rd  Defendant’s/  Respondent’s ownership  cancelled and   also holds the 1st  Defendant/ Respondent liable for falsifying the  titles that she gave to her. At an interlocutory stage, the Court is not required  to  make a determination over  contentious issues.

From the Affidavits of the parties, it is not in doubt that the allegations by the Plaintiff/ Applicant as against the 1st Defendant/ Respondent has been disputed.  Further, there are counter allegations by the parties that have further been disputed and the same being serious allegations of fraud, the Court finds and holds that it cannot make a determination based on affidavit evidence as the same ought to be subjected to cross examination during the main hearing and then the Court can make a determination.

The Court has carefully read and considered the orders sought by the Plaintiff/ Applicant and it has satisfied itself that the same are mandatory orders.   A mandatory injunction can be granted on an interlocutory applications as well as at the hearing, but should not normally be granted in the absence of special circumstances. But if a case is clear and which the Court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory stage. See the case of Shariff Abdi Hassan …Vs… Nadhif Jama Adan [2006] eKLR, where the Court  held that:

“The Courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the Courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.”

It is evident that mandatory orders of injunction are granted in very special and exceptional circumstances at the interlocutory stage.  These are orders that are sought in the Plaint and if granted at this stage, it would mean that some of the prayers in the Plaint have been exhausted at the interlocutory stage, without the benefit of hearing evidence of all the parties. The  Court  must therefore be satisfied that the  Plaintiff/Applicant  has established existence of exceptional circumstances  in order to grant the said orders. See the case of Kenya Breweries Ltd & Ano….Vs….Washington O. Okeyo, Civil Appeal No.332 of 2000. 1EA 109, where the Court held that:

“A mandatory injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not normally be granted.  However, if the case is clear and one which the Court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied or if the Defendant attempted to steal a march on the Plaintiff…. a mandatory injunction will be granted on an interlocutory application”.SeeVolume 24 Halsbury Laws of England 4th Edition Paragraph 948.

Having carefully considered  the issues in this instant case, it is not in doubt that the same is not a straight forward matter. The Plaintiff/ Applicant alleges that she gave her title documents to the 1st  Defendant/ Respondent who fraudulently transferred the same to the 2nd  Defendant/Respondent. The same is denied by the  1st Defendant/ Respondent,  who  claims to have no knowledge of the same. Further the allegations by the 2nd Defendant/ Respondent that he was introduced to  the 3rd  Defendant/ Respondents by the 1st  Defendant have also been denied by the  1st Respondent and 3rd  Defendant/Respondent. The 5th   Defendant/Respondent also has an interest over the suit properties.

Therefore, this Court finds that there is no evidence of existence of any special or exceptional circumstances to warrant this Court issue the mandatory orders of injunction at this interlocutory stage and further order for cancellation of the green card entries.   Further, there is no evidence that was brought out to show that the Defendants are trying to steal a match against the Plaintiff/Applicant herein.

For the above reasons, the Court finds the Plaintiffs/Applicants’ Notice of Motion application dated 15th June 2020 is not merited.  The same is dismissed entirely with costs being in the cause.

It is so ordered

Dated, signed andDelivered atThikathis24th day ofSeptember, 2021

L. GACHERU

JUDGE

Court Assistant – Lucy