WINNIE NJERI KARIUKI v CONSOLATA WANGECHI MURIUKI,SAMUEL MUREITHI MURIOKI,SIALS MURIOKI,JOHN MWANGI MUTITU & ATTORNEY GENERAL [2011] KEHC 1338 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ELC CASE NO. 470 OF 2010

WINNIE NJERI KARIUKI …………..............................……………………….PLAINTIFF

VERSUS

CONSOLATA WANGECHI MURIUKI …………....................……….1ST DEFENDANT

SAMUEL MUREITHI MURIOKI ……………....................…. ………2ND DEFENDANT

SIALS MURIOKI ………………………………................…………. 3RD DEFENDANT

JOHN MWANGI MUTITU …………..................……………………..4TH DEFENDANT

ATTORNEY GENERAL ……………................……………………5TH DEFENDANT

RULING

The dispute herein involves a parcel of land Known as LR NO. Nairobi Block 119/1531. From the material before me the property was owned by the 3rd defendant Silas Murioki who gifted it to the 1st defendant Consolata Wangechi Muriuki. The 1st defendant then sold the said parcel of land to the 4th defendant John Mwangi Mutitu. The plaintiff is the wife of the 2nd defendant and it is her case that she was encouraged by the family to develop the suit property which she did with her own money.

In her plaint she stated that during the construction of her rental units on the said property, the property had been placed under the authority of the 2nd defendant in trust for the family and it was always believed to be the property of the family. It is her case that the 1st defendant got the property transferred to her by her father through duress and fraud. She has listed the particulars of fraud in her plaint.

Paragraphs 16 of the plaint is instructive and it reads as follows,

“16 The plaintiff invested over Kshs. One million, four hundred thousand which she stands to lose if the property is unlawfully disposed of”

On 15th October, 2010 upon an application by the plaintiff, interim injunction orders were issued in her favour of the plaintiff and the application listed for hearing inter partes. Subsequently, the 4th defendant moved the court to have the said interim orders discharged by an application dated 31st January, 2011 and filed on 3rd February, 2011.

The parties herein have filed written submissions to address the two applications. It is clear from the material before me that the plaintiff claims interest on the said parcel of land based on the fact that she was married in this family. Beyond that, her claim is not based on title to the said property and in fact, going by ground h) of her application dated 15th October, 2010 it is clear her interest is limited to compensation from the defendants. The said ground reads as follows,

“The plaintiff/applicant now demands compensation from the defendants a total sum of Kshs.3,389. 00 being special damages Kshs. 1,389,583. 00 for her developments and other damages a total of Kenya shillings 2 Million”

The suit property has changed hands two times. The first was the gift to the 1st defendant by the 3d defendant and the second is the sale from the 1st defendant to the 4th defendant. The 3rd defendant was the registered proprietor. He had no duty, legal or otherwise, to consult anybody before gifting the land to the 1st defendant who is his daughter. He was free under Section 27 of the Registered Land Act Cap 300 Laws of Kenya, to deal with the land in any manner he wished and there is no evidence that he held this title in trust for any person.

The 4th defendant appears to be an innocent purchaser for value without notice. He acquired a good title from the 1st defendant and there is no evidence that he was involved in any fraud relating to that transaction.

The plaintiff has a duty to establish a prima facie case with a probability of success and show that, if the orders are not issued in her favour, she is likely to suffer irreparable loss that may not be compensated by an award of damages. The facts she has pleaded in the plaint and for reasons that she has no registerable interest in the suit property lead the court to find she has not established a prima facie case with a probability of success. The plaintiff has particularized her claim for damages. In effect she has pleaded herself out of the principles set out in the case ofGiella vs Cassman Brown and Company Limited (1973) EA 358. She has not alleged that either the 1st defendant or the 4th defendant are incapable of compensating her in the event that she succeeds in this suit.

I am unable to uphold her claim for injunction orders and therefore the application dated 15th October, 2010 is hereby dismissed. It follows that the 4th defendant’s application dated 31st January and filed on 3rd February, 2011 succeeds. The interim orders are therefore discharged. The defendants shall have the costs of this application as against the plaintiff.

Orders accordingly.

Dated, signed and delivered at Nairobi this 5th Day of July, 2011

A.MBOGHOLI MSAGHA

JUDGE

In the presence of