Mwabalahe & 5 others v Bamahriz & another

rent; that there is no privity of contract or viable cause of action between the plaintis and himself, and the plaintis lack the locus standi to bring this suit; that the suit should be dismissed with costs. 2. The application is opposed by the plaintis through the replying adavit sworn by Salim Salim Mwabalahe, 1st plainti, sworn on the May 15, 2024, in which he inter alia deposed that the suit land was public land and the 1st defendant has not shown that the due process was followed when it was allocated; that the plaintis are residents of Likoni area and have through their pleadings demonstrated that the suit property is used as a public arena for public functions including religious gatherings, sports, community events and political rallies, and its allocation to 1st defendant is therefore null and void and contrary to the public interests of the citizen in that area and Kenya in general; that the plaintis have the locus standi to institute and prosecute this suit under Article 22 & 25 of the Constitution of Kenya 2010, and the present application is a belated attempt to delay the suit led in 2018; that the 1st defendant had not raised the issue of their locus standi in his statement of defence and has been attending court since 2018, and the application lacks in merit and should be dismissed with costs. 3. The court issued directions on ling and exchanging submissions on the July 9, 2024, and the learned counsel for the plaintis led theirs dated July 15, 2024. The record conrms that the 1st defendant had not led submissions as of October 2, 2024 when today’s ruling date was xed. The court directed the learned counsel for the 1st defendant to le their submissions before close of business that day. At the time of preparing this ruling, I perused the CTS and the physical le and has not seen any submissions led by the 1st defendant on their application dated April 9, 2024. The learned counsel for the 2nd defendant had told the court on the July 9, 2024 that they would not participate in the hearing of the instant application. 4. The following are the issues for the determinations by the court: 5. a. Whether the plaintis have the locus standi to institute and prosecute this suit. b. Whether the plaintis suit as led discloses a reasonable cause of action against the 1st defendant. c. Who pays the costs? The court has clearly considered the grounds on the notice of motion, adavit evidence by the plaintis and 1st defendant, submissions by the plaintis’ counsel, the pleadings led and come to the following conclusions: a. That from the plaintis’ pleadings in the amended plaint dated June 28, 2019, the suit property was public land registered with the 2nd defendant as custodian for the general public, that has been leased to the 1st defendant. The 1st defendant averred in his statement of defence dated the 13th August 2019, that he bought the suit property from the previous owner, and is therefore the registered owner vide a lease from the County Government of Mombasa. The court has noted from the copy of the certicate of lease for the suit property attached to 1st defendant’s replying adavit sworn on the May 7, 2018 in response to an application dated the April 27, 2018, that register to the property was opened on the October 6, 2010. The same certicate of lease show the 1st defendant was registered as the owner of the leasehold interest on February 28, 2018 under entry number 11, and the Municipal Council of Mombasa, the predecessor to the 2nd defendant, is indicated as the lessor. b. The plaintis’ pleadings at paragraphs 6, and 7 of the plaint averred that the 2nd defendant has “illegally and unprocedurally alienated and allocated the suit land which is public land to the https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13280/eng@2024-11-20 2

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1st defendant to the detriment of the plaintis and the general public at large.” That “the entire community within Likoni area stands to suer irreparable loss if the construction activities of the 1st defendant already commenced on the suit property are not stopped by this honourable court.” The 1st defendant has at paragraph 6 of the statement of defence averred that “he is the registered owners of the suit property vide a lease from the County Government of Mombasa.” The foregoing averments by the parties and the contents of the certicate of lease over the suit property issued to the 1st defendant on the 28th February 2018, that the court referred to in (a) above, leads the court to nd that the suit property was public property registered with the 2nd defendant obviously for public use. The plaintis have faulted the procedure through which the 2nd defendant alienated the said public land to private land that is now leased to the 1st defendant. c. The 1st defendant has averred that he bought the suit property from the previous registered owner, and that the plaintis do not have the locus standi to institute this suit. The plaintis have relied on Articles 22 & 25 of the Constitution that deals with enforcement of bill of rights and fundamental rights and freedoms that may not be limited respectively. That as the suit property has a history of being public land, and the plaintis are indeed questioning the process through which it was alienated by 2nd defendant to the 1st defendant, I nd it is only fair and just that the suit be allowed to proceed to hearing and determined on merit in view of the provision of Article 40(6) and section 26(1) of the Land Registration Act No.3 of 2012. In case the plaintis fail to succeed, the 1st defendant may be compensated through an award of costs. It is therefore the nding of the court that the plaintis have the locus to le and prosecute this suit and indeed their suit has disclosed a reasonable cause of action against the 1st defendant. d. Under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the events unless where the court for good cause orders otherwise. In this instance, I do not nd any cause to order otherwise and the plaintis are awarded costs. 6. In view of the above conclusions, the court nds and orders as follows: a. The 1st defendant’s notice of motion dated the 9th April 2024 is without merit and is hereby dismissed. b. The plaintis are awarded costs in the application. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 20TH DAY OF NOVEMBER 2024. S. M. Kibunja, J. ELC MOMBASA. IN THE PRESENCE OF: PLAINTIFFS : M/s Nyambune for Mokaya DEFENDANTS : Mr. Mohamed for 1st Defendant LEAKEY – Court Assistant. S. M. Kibunja, J. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13280/eng@2024-11-20 3

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