Alausii & another v Mussani & 8 others

whatsoever disposing o all that property known as Land Reference Number 141 Malindi Title Number LT 21 Folio 817 File 306 pending the hearing and determination of the suit herein. 4. 2. That the costs of this application be provided for. The application which is supported by the adavit sworn by Mohamed Ali Alausii, the 1st Plainti, on 25/1/2021, is based on the following grounds: 1. That the Plaintis are the registered owners of all that property known as Land Reference Number 141 Malindi, Title Number LT 21 Folio 817 File 306 (hereinafter “the suit property” ;) 2. That the defendants have fraudulently and without any color of right fraudulently obtained titles in respect of various portions of the Plaintis’ aforesaid property without the Plaintis’ consent and approval; 3. That the title documents held by the defendants are all illegal documents and do not confer any legal interests in the subject land; 4. That the defendants have embarked on construction works and are keen on undertaking extensive developments on the plaintis’ aforesaid property. 3. The Plaintis’ case is that they inherited the suit property from their grandparents namely, Haji Ahmed Hajji Ibrahim, Time Binti Masoud and Halima Binti Masoud, who were all siblings to one Hussein Wa Masoudi Bin-Alidina, the apparent original owner of the suit property. The 1st Plainti added that by an agreement dated 6/9/2006, the Plaintis agreed to sell a portion of the suit property containing approximately 30 acres, to one Francis Wambugu Ngabi who failed to pay the agreed consideration. Resultantly, one Joseph Wambugu, a director of the 7th Defendant, oered to purchase the said 30 acres and an agreement between the plaintis and the 7th defendant was executed. Similarly, the 7th Defendant failed to pay the purchase price, forcing the Plaintis to decline a transfer to it. Thereafter, the said Joseph Wambugu informed them that they had transferred the portion to the 1st Defendant and at some point, the said Joseph Wambugu caused the arrest of the Plaintis during which arrest attempts were made to coerce the plaintis into executing transfer documents in favour of the 1st Defendant which they refused. Ultimately, the 1st Defendant was registered as the owner of the said portion and subdivision done in favour of the other Defendants. It is alleged that the transfer was without the plainti’s consent. 4. The Plainti further deposed that following the loss of the original title, they made an application for a provisional title, however, they are yet to obtain the same for the reason that the suit property’s le at the land’s registry cannot be found. He added that the National Land Commission has since established that the suit property belongs to the Plaintis and in a letter dated 4/7/2018 expressly recommended the District Land Registrar to rectify the title in favour of the Plaintis; that despite the above, the Defendants have since moved into the property carrying out extensive developments prejudicial to the Plaintis’ interests. 2nd Defendant’s Response. 5. The application is contested. The 2nd Defendant swore a replying adavit on 25/1/2022 wherein he deposed that the suit is sub judice Malindi ELC 59 of 2017 Khalid Badi Swedi & 2 others v Arbi Ali Mohamed Mussani & 3 others; that the Plaintis have no known proprietary rights over the suit property, Plot No 141, which is in any event non-existent following sub-divisions. He explained https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13402/eng@2024-11-20 2

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that the Plaintis were previous beneciaries through intestacy, and upon the said subdivision, they distributed the new portions to Khalid Badi Swedi, Mohamed Ali Alausi, Halima Hussein Ahmed and Arbi Ali Mohamed Mussaini. 6. The 2nd Defendant added that the suit and application are barred by the doctrine of estoppel by virtue of memorandum of understanding dated 26/2/2014, between the Plainti and the 1st and 8th Defendant. He stated that he lawfully and procedurally purchased the sub-division plot 13761 from the 1st Defendant vide an agreement dated 26/2/2014 and that he has since further subdivided the said plot and sold the same to third parties. He asserted that the orders sought were untenable. The 3rd Defendant’s Response. 7. The 3rd Defendant led a replying adavit which he personally swore on 10/2/2022 adopting the contents of the 2nd Defendant’s replying adavit. He added that he is the registered owner of portions No 13757 – 13760 being products of sub-division of the original Plot No 141. He also lked a notice of preliminary objection to the suit and the motion stating that they are sub judice ELC 59 of 2017. The 6th Defendant’s response 8. The 6th Defendant also opposed the application. He swore a replying adavit on 31/1/2022, stating that he purchased a total of 5 acres from the Plaintis and two other deceased persons identied as Halima Hussein and Hassan Serenge in the year 2007, and has since constructed his permanent home thereon. He explained that the 1st Defendant sub-divided the land and the 1st Plainti authorized that a portion 13763 be given to him (6th Defendant) together with some other 3.5 acres. Pursuant to this arrangement, they signed an indenture of transfer which they presented for registration; that the 1st Plainti managed to retrieve the indenture, forcing the 1st Defendant to prepare another indenture which the 1st Plainti has since refused to sign; that he agreed to retain the 3.5 acres when he learnt that the 1st Defendant had re-sold the other portion to a dierent person, yet the Plainti led ELC No 59 of 2017 contesting his ownership; that during the pendency of that suit, the Plaintis led a complaint against him to the Assistant County Commissioner, where they agreed to be bound by the ndings of a joint surveyor; that the outcome of the survey revealed that the 6th Defendant occupied three and a quarter acre; the 6th Defendant urged the court to dismiss the application for being an abuse of the court process. The 7th Defendant’s response 9. The 7th Defendant also opposed the application. It led a replying adavit sworn by Joshua Rodrot, its director, on 5/3/2022, who stated that the suit and application were bad in law, misconceived and an abuse of the court process for failure to disclose any cause of action against the 7th Defendant; that the Plaintis sub-divided and transferred plot No 141 to other individuals including the 7th Defendant, who occupies portion No 13756, vide an indenture dated 9/10/2013. 10. Parties were directed to le written submissions. While Ms. Mwangi, counsel for the 3rd Defendant indicated that she shall rely on the replying adavit on record, none of the other parties complied with those directions, or did like Ms Mwangi, not even the Plainti/applicant. Where no other mode of disposal of the application save by ling of submissions has been ordered by court, the application can not be deemed to have been prosecuted. This applied to the present application where the applicant has failed to led submissions. In the premises, I dismiss the application for want of compliance with this court’s directions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13402/eng@2024-11-20 3

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RULING DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 20TH DAY OF NOVEMBER, 2024. MWANGI NJOROGE JUDGE, ELC, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13402/eng@2024-11-20 4

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