Supermarketing and Distribution Limited v Mpimpi & 2 others

b. A declaration that the conduct of the rst and second respondents in ling Kajiado Chief Magistrate’s Court Miscellaneous Civil Case No. 49 of 2018, Joseph Lantei Mpimpi –versusLeah Wanjiru and Kiplang’at Ng’eno and ordering release of the original title deeds over L.R. Kajiado/Dalalekutuk/2129 and 2130 (suit parcel) to the rst Respondent before and without hearing the Petitioner egregiously violated the petitioner’s right to fair Administrative Act as guaranteed under articles 25 and 47(1) of the Constitution of Kenya, section 4 of the Fair Administrative Actions Act, 2015, the Rules of Natural Justice-Audi Alteram Partem, the right not to be condemned unheard and the resultant order of the 2nd respondent of 28/9/2018 is accordingly null and void. (c) A writ of Certiorari to remove in to the court and quash the impugned decision of the second respondent issued on September 28, 2018 in suit No. 49 of 2018 (supra) releasing the title deeds to the suit land to the rst respondent. (d) An order directing the release of the original title deed over the suit parcels to the petitioner within seven days of the Decree of the court, to dispose o the said property strictly in accordance with the Deed of Guarantee dated and release the outstanding debt and any surplus thereof to be restored to the rst Respondent. Alternatively to (d) above. 2. (e) If the rst respondent shall be inclined to retain the suit property, the rst respondent to pay the petitioner the sum of Kshs. 430, 056, 570.85 together with interest thereon at 2% per month from the date of ling of the suit until and inclusive of payment in full, within 30 days of the decree of the court. (f) General damages for violation of fundamental rights of the Petitioner. (g) Any other relief betting under article 23(3) of the Constitution of Kenya. (h) Costs of this Petition on indemnity basis. The Petitioner’s case is as follows. On or about the 1/10/2015 the petitioner concluded an agreement for sale and purchase of goods with Simba Merchandising Company (K) Limited for supply of hardware and hardware goods for a continuous period of contract of ve years from the date of the agreement. On 8/10/2015 the rst respondent secured credit facilities by the petitioner in favour of Simba Merchandising Company (K) Limited vide a Deed of Guarantee and securization. 3. The rst respondent pledged his property L.R. 2129 and 2130 (suit property) or any portion thereof in cause of default by Simba in payment of the value of the goods supplied, that the said property would be disposed o to recover the entire outstanding sum. 4. In addition to the foregoing, the rstrespondent appointed the Director of the petitioner, Mr. Paresh Chamdra Pranlal Madhvani, as his attorney through a special power of attorney dated 8/10/2015 that was duly executed by the Respondent over the suit property giving him authority and mandate to dispose o the property as aforesaid but strictly upon occurrence of the aforesaid events. 5. On 24/1/2016, the power of attorney was duly registered at Kajiado South and Central District Land Registry in respect of the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17717/eng@2023-03-07 2

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6. The rst respondent gave the petitioner’s advocates the original title deeds for the suit land. In addition he gave blank transfers for the suit land duly executed by himself. 7. The petitioner performed its obligation as per the agreement after which they duly invoiced Simba for Kshs. 85, 400, 000/-. Simba defaulted in payment. 8. In accordance with clauses 3, 4, 5, 6 and 7, the petitioner served a notice upon the rst Respondent by a letter dated 22/2/2016 informing him of Simba’s default and requesting him to make good the debt. 9. The rst respondent did not pay. Thepetitioner’s advocates released the title deeds to the suit property to the Petitioner’s director Mr. P.C.P Madhvani. The petitioner placed a caution over the land pending its disposal to recover the debt. 10. From that time, events turned in a bizarre manner because the rst Respondent made false accusations against the petitioner’s Director to the police who was ordered to produce the original title deeds for the suit land and surrender them to the police. 11. The rstrespondent led Civil Case No. 49 of 2018 and obtained orders for the release of the title deeds. The Petitioner was never served with any court process in Case No. 49 of 2018. He was therefore condemned unheard. It is for the above stated reasons that the Petitioner led this petition. 12. In support of the petition, the petitioner led the following evidence. 13. a. Copy of the agreement dated 1/10/2015 between super marketing and distribution limited and Simba Merchandising Co. (K) Limited. b. Copy of agreement dated 8/10/2015 between Simon Merchandising Co. (K) Limited and the rst Respondent. c. Copy of special power of attorney dated 8/10/2015. d. Copies of transfer instruments for the two land parcels. e. Other relevant documents. The Petition is opposed by rst respondent who has sworn a replying adavit dated 26/7/2019. He replies as follows. Firstly, he admits entering into a lease agreement with Simba Merchandising Company (K) Limited for title deeds numbers Kajiado/Dalalekutuk/2129, 2130 and 2132. Secondly, the agreement was for mining and prospecting only and the lessor was to pay Kshs. 260, 000/- per month for the land. Thirdly, the petitioner’s advocates used trickery to insert other clauses in the lease agreement. These clauses include the power of attorney and the transfer forms which the rstrespondent believed were part and parcel of the lease agreement. Fourthly, thepetitioner sold L.R. No. 2134 without the knowledge of the rst respondent and he only managed to salvage the 2129 and 2130 through police action. Finally, the rst respondent was never told that his land was being used as security by Simba Merchandising Ltd. He contends that the entire process was fraudulent and the petition should be dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17717/eng@2023-03-07 3

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14. In addition to opposing the Petition, the rstrespondent has also led a cross petition dated 26/7/2019 in which he seeks a declaration that the sale of L.R. 2134 be declared null and void and the title to revert to the rst respondent and the agreement of 1/10/2015 to be declared null and void. 15. In support of his defence to the petitioner’s petition an in support of his own cross petition, the rst Respondent led a verifying adavit and a copy of the agreement dated 8/10/2015. He also led a replying adavit also dated 26/7/2019. 16. The second and thirdrespondents led grounds of opposition dated 15/1/2019 denying being party to the contractual agreement between the petitioners and the rst respondent. They called for the dismissal of thepetitioner’s claim against them. 17. At the trial which took place on 27/5/2021 and 24/5/2022, the petitioner’s managing director and the rst respondent testied physically in open court and they were cross-examined by the adversary’s counsel. 18. Counsel for the petitioner and the rst respondent led written submissions on 15th and August 31, 2022 respectively. The issues raised in the submissions are as follows. i. Whether the order of the court in Kajiado Chief Magistrate’s Court Miscellaneous Case No. 49 of 2018 Joseph Lantei Mpimpi –versus- Leah Wanjiru and Kiplang’at Ng’eno of September 25, 2018was regular? ii. Jurisdiction of this court vis-à-vis the claim by the 1st respondent as contained in the replying adavit and cross – petition. iii. As a consequence, whether orders and reliefs under the petition should issue. iv. Whether this case should have been brought as a petition or other suit. 19. I have carefully considered the petition in its entirety including the adavits, the documents, the submissions and the case law cited therein. I agree with counsel for the parties that the four issues raised above will determine this suit. I make the following ndings. 20. On the rst issue, I do not have enough material placed before me by any of the parties in this suit to make me reach any reasonable conclusion on the regularity or otherwise of the suit before the lower court. Only the court order dated 25/9/2018 was led by the Petitioner. Neither the pleadings nor the proceedings were ever led. Without the entire record of the lower courtand the alleged irregularities being pointed out, this court cannot reach any conclusion on the decision by the trial magistrate. Secondly, on this issue, it is not clear to me why the Petitioner did not seek to join that suit in the lower court and set aside the orders made therein. Nothing in law precluded the Petitioner from taking that line of action. 21. Regarding the second issue, I nd that if this court has jurisdiction to hear the petitioner’s Petition, it also has jurisdiction to hear the rst Respondent’s cross petition. The Petitioner cannot be heard to say otherwise. It cannot approbate and reprobate at the same time. 22. On the third issue, I nd that the orders and reliefs sought cannot issue for the following reasons. Firstly, the petitioner has not proved that the rst respondent was paid any consideration for his land. There is no evidence of any consideration paid. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17717/eng@2023-03-07 4

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Secondly, there is no evidence that the rst respondent was supplied with any goods worth Kshs. 430, 056, 570.85 or any goods at all. Why should he lose his land yet he got no payment for it? The Petitioner has not proved this crucial aspect of suit. Thirdly, the petitioner has not joined the shadowy entity called Simba Merchandising in this suit. I say shadowy because from the agreements led in court, I have not seen any name of the directors or other ocers of the company. Simba Merchandising should have been made a necessary party by the Petitioners because they are the defaulters in paying the debt that they allegedly owed thepetitioners. It is only if they had been joined in this petition that we would have known why the rst Respondent was expected to shoulder their debt responsibility. 23. On the nal issue, due to the deciencies in the entire petition noted above, I am not certain if this suit meets the test in the case of Annarita Karimi v Republic [1979] eKLR. What I am certain is that the petition as presented has no merit for the reasons already given. 24. Regarding the cross petition I too nd that it has not been proved owing to the inadequacy of the material led by rstrespondent. 25. For the above stated reasons, I dismiss the petition and the cross petition. No order as to costs. DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 7TH DAY OF MARCH, 2023. M.N. GICHERU JUDGE HON. JUSTICE M.N. GICHERU JUDGMENT https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17717/eng@2023-03-07 5

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