keelc-2021-04208

a. That this Honourable Court be pleased to set aside and altogether vacate its Orders issued on 7 th July, 2020 relating to the Plaintiffs’ Applicati0n dated 25th June, 2020. 6. The Application was supported by the 5 th Defendant’s employee who deponed that the suit property is currently registered in the name of the 1st Defendant who is also the Chargor and the borrower and that the 2 nd and 3rd Defendants are its Directors whilst the 5 th Defendant is the Chargee. 7. It was deponed by the 5 th Defendant’s employee that Section 71 of the Land Registration Act provides for the process of lodging a caveat; that the lodging of a caveat is done in exclusion of the courts and at the sole discretion of the relevant Land Registrar and that the Plaintiffs cannot therefore bypass this procedure by irregularly invoking the court’s judicial discretion prematurely. 8. It was deponed that the Plaintiffs misled the court into believing that the 1 st Defendant had cleared the loan facility with the bank, which position is untrue and that the order of mandatory injunction directing the Registrar, Machakos County to place a caveat upon the suit land which is charged to the 5 th Defendant/bank, was based on pure speculation and without any evidence of the alleged impending dealings on the suit land by the Defendants and specifically the 5 th Defendant/bank. 9. It was deponed by the 5th Defendant’s employee that the said mandatory orders of injunction were obtained by the Plaintiffs without having met the legal threshold required for the grant of mandatory injunction and that the said orders were issued without affording the 5 th Defendant audience. 10. It was deponed by the 5 th Defendant’s employee that in any event, and on a prima facie, the Plaintiffs had no right to seek for any orders in respect to the suit property because a legal charge has been registered in favour of the bank; that the bank is in possession of the title document and that the suit property cannot be subject to any lawful sub-division in the absence of the title. 11. It was finally averred that the Plaintiffs are guilty of non-disclosure for failing to inform this court that this matter is pending for determination before the High Court of Kenya at Machakos; that the 5 th Defendant’s interest in this matter is repayment of money lent to the 1st to 4th Defendants and not the land itself and that the Plaintiffs have at all times asserted that they recognize the duty to pay monies owing to the 5th Defendant in settlement of the loan. Submissions: 12. The Plaintiffs’ counsel submitted that the registration of parcel of land known as L.R. No. Mavoko Block 3/7260 should be rectified so as to have the land registered in the names of the Plaintiffs in place of the 1 st Defendant; that the Plaintiffs have sought for justice for all parties as the 5th Defendant lender would be paid its money; and that the 5 th Defendant’s interest in this matter is for repayment of the money it lent to the 1st to the 4th Defendants. 13. Counsel submitted that the 1st to 4th Defendants have no interest in parcel number L.R. No. Mavoko Block 3/7260 having sold it to the Plaintiffs. Counsel relied on the case of Alice Chemutai Too vs Nickson Kipkirui Korir & 2 Others [2015] eKLR. 14. The 5th Defendant’s counsel submitted that where there is an alternative remedy provided for in statute, the court is divested of jurisdiction and that a party cannot move the court to assume jurisdiction as that would be tantamount to asking the court to act ultra vires. Counsel relied on the case of Speaker of the National Assembly vs. James Njenga Karume [1992] eKLR where the Court of Appeal held that:- “Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.” 15. Learned Counsel further submitted that Section 71 of the Land Act does not clothe this Honourable Court with jurisdiction to adjudicate over the already statute sanctioned process of lodging a caveat over any instrument of title. Analysis and findings: 16. I have considered the Application, the submissions by counsel and authorities. In the Application dated 23 rd June, 2020, the Plaintiffs are praying for an order directing the Land Registrar to lodge a caveat in respect of the suit property, and to direct the 5 th Defendant to deposit the title document for Mavoko Town Block 3/7260 in court. 17. According to the Plaintiffs, the suit property was sub-divided by the 1 st to 4th Defendants and sold to the Plaintiffs, amongst other purchasers. The Plaintiffs have acknowledged that they were aware that the land was charged to the 5 th Defendant as the time they purchased the land. The Plaintiffs have also acknowledged that the original title document is in possession of the 5 th Defendant as a Chargee. 18. The Plaintiffs claim that they purchased the suit property and that they have fully paid the purchase price to the 1 st to the 4th Defendants is not supported by any evidence. Indeed, the Plaintiffs did not annex on their Affidavit the Sale Agreements in respect to the suit property to show that they have a beneficial or legal interest in the suit property. On that ground alone, the Plaintiffs claim that they are entitled to the suit property as purchasers for value fails.

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19. In any event, the power to lodge a caveat (sic) is bestowed on the Land Registrar. That power is discretionary, and can only be exercised after due process has been followed, and in particular circumstances. Section 71(2), (3) and (4) of the Land Registration Act provides as follows: “(2) A caution may either(a) forbid the registration of dispositions and the making of entries; or (b) forbid the registration of dispositions and the making of entries to the extent expressed in the caution. (3) A caution shall be in the prescribed form, and the Registrar may require the cautioner to support the caution by a statutory declaration. (4) The Registrar may reject a caution that is unnecessary or whose purpose can be effected by the registration of an instrument under this Act.” 20. The Plaintiffs are required to apply to the Registrar, and not to this court, to lodge a caution (not a caveat) forbidding registration of dispositions of the land in the prescribed for, supported by a statutory declaration. The law allows the Registrar to accept or reject the application. The Plaintiffs have not shown that they did make such an application to the Registrar of Lands before filing the current Application. 21. In any event, the suit property has been charged to the 5 th Defendant. The suit property is therefore already encumbered by the said charge. That being the case, a caution cannot be registered against the title because the charge takes precedence over all other entries. Furthermore, the original title is held by the 5 th Defendant as a chargee. That being so, this court cannot compel the 5 th Defendant to deposit the said title as prayed in the current Application. The Plaintiffs have not pointed to this court the law that grants this court the mandate to make such a drastic order as against the 5th Defendant. 22. For those reasons, I dismiss the Plaintiffs’ Application dated 23 rd June, 2020 with costs and allow the 5th Defendant’s Application dated 28th July, 2020 as prayed. DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 26TH DAY OF FEBRUARY, 2021. O.A. ANGOTE JUDGE

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