Wega Bakery Limited v Luka Musyimi Musau,Registrar of Titles, Nairobi & Ketry Apartments-Imara Daima Ltd [2018] KEELC 2034 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CASE  NO.   110  OF 2018

WEGA BAKERY LIMITED.........................................................PLAINTIFF

=VERSUS=

LUKA MUSYIMI MUSAU................................................1ST DEFENDANT

REGISTRAR OF TITLES, NAIROBI............................2ND DEFENDANT

KETRY APARTMENTS-IMARA DAIMA LTD.....INTERESTED PARTY

RULING

1. The dispute in this suit relates to Land Reference Number 209/11040.  The plaintiff contends that it is the registered proprietor of a Grant registered on 30/6/1992 as Number IR 55963/1 in which the said land is comprised.  Similarly, the 1st defendant contends that he is the registered proprietor of a Grant registered on 1/7/1992 as Number IR 55963/1 in which the piece of land is comprised.  Whether indeed two bonafide Grants exist in respect of the same piece of land is a substantive issue for determination at an appropriate forum in this suit.

2. On 9/3/2018, the plaintiff brought this suit, contending that the 1st defendant had forged a title to the suit property and was purporting that the forged title was issued by the 1st defendant.  It sought, inter alia, a revocation of the 1st defendant’s title.  Together with the plaint, it filed a notice of motion dated 8/3/2018 seeking an interim injunctive preservatory order pending the hearing and determination of the suit.

3. On 11/4/2018, the 1st defendant filed a statement of defence in which it denied the allegations of fraud and contended that it was the legitimate registered proprietor of the suit property and that the title held by the plaintiff was a forgery.  It further contended that the allotment letter upon which the plaintiff’s title was purportedly issued was dated approximately 19 years prior to the date of incorporation of the plaintiff company. It urged the court to dismiss the plaintiff’s suit.

4. Together with the defence, the 1st defendant brought a notice of motion dated 5/4/2018 seeking to vacate the interim orders issued by Okong’o J on 9/3/2018.  Both the plaintiff’s notice of motion dated 8/3/2018 and the 1st defendant’s notice of motion dated 5/4/2018 are pending disposal.

5. Besides the above two applications, on 25/4/2018, M/s Ketry Apartments – Imara Daima Limited brought a notice of motion dated 25/4/2018 seeking to be en-joined in this suit as an interested party.  The application was argued by Mr Avedi in open court on 17/5/2018.  The said application  is the subject of this ruling.

6. The said application is supported by an affidavit sworn on 25/4/2018 by the applicant company’s Kennedy Kubasu.  Its case is that in December 2017 it entered into a purchase agreement with the 1st defendant, pursuant to which it purchased the suit property from the 1st defendant at a consideration of Kshs 24,000,000.  It duly paid the entire purchase price to the 1st defendant through the 1st defendant’s advocates, M/s TrippleOklaw Advocates.

Upon acquisition of the suit property and procurement of requisite approvals, it embarked on development of the suit property.  It further contends that the interim order granted in this suit has adversely affected the construction works.

7. Mr Mwangi, counsel for the plaintiff opposed the application.  He argued that there is no registrable instrument disclosed by the applicant.  He further submitted that the agreement displayed by the 1st defendant is inadmissible under the Stamp Duty Act because it has not been stamped.  He added that the applicant will not be of any help in this suit because the issue in the suit relates to the authenticity of the two titles.

8. In his rejoinder, Mr Avedi submitted that the conveyance giving rise to the applicant’s claim has not been completed and has been affected by the interim order issued in this suit.  He added that any order issued by the court will affect the applicant.

9. Mr. Obuya, counsel for the 1st defendant supported the application for joinder of Ketry Apartments – Imara Daima Limited.

10. I have considered the tenor and import of the application, the supporting materials and the parties’ rival submissions.  I have also considered the law and principles that guide the court’s jurisdiction to grant an order of joinder.

11. Order 1 rule 3 permits joinder as defendants, of all persons against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist. Besides the above framework, Order 1 rule 10(2) empowers the court to order joinder of any party whose presence before the court may be necessary for the effectual and complete adjudication and settlement of all questions in the suit.

12. In the present suit, the applicant has presented evidence that he purchased the suit property from the 1st defendant and that the interim order issued in this suit has affected the completion of the conveyance and the construction works that were ongoing. A copy of the agreement for sale is annexed to the 1st defendant’s replying affidavit.  There is also uncontroverted evidence that purchase price has been remitted to the 1st defendant.  Secondly, the applicant has deposed that it is the one developing the suit property and that the construction has been affected by the order issued in this suit.

13. The plaintiff and the 1st defendant both hold what they call legitimate titles.  Ultimately, the court will be invited to determine which of the two purported titles is authentic and which of them is not.  That determination will without doubt affect the applicant who has paid Kshs 24,000,000 to purchase the title held by the 1st defendant.  He is entitled to be part of that determination and to thereafter take appropriate legal steps based on the determination.  To lock him out of these proceedings will not be fair and will not accord with the letter and spirit of Article 50 of the Constitution of Kenya.

14. The plaintiff raised the issue of admissibility of the agreement for sale as exhibited by the 1st defendant.  I have not given that issue much weight at this stage because perfection of conveyance documents was ongoing when the present dispute arose.  It is expected that parties to the agreement will comply with the provisions of the Stamp Duty Act in due course. Secondly, even if the court were to ignore the agreement, the uncontroverted evidence to  the effect that the applicant is the one undertaking the construction under the guise of beneficial ownership of the property makes it a necessary party who should participate in the proceedings and against whom the subsisting conservatory order should be directed.

15. Without saying much, the court is satisfied that the applicant meets the criteria for joinder either as a defendant or as an interested party.  Consequently, the notice of motion dated 25/4/2018 is allowed in terms of prayer 1.  Costs shall be in the cause.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 26TH DAY OF JULY 2018.

B  M EBOSO

JUDGE

In the presence of:-

Mr Onderi holding brief for Mr Mwangi Advocate for the plaintiff

Mr Kamau Advocate for the 2nd defendant

Ms Halima Abdi - Court Clerk