Berthold Rosshirt v Dahabo Galgalo Duba

Duba, Jamila Issa Mutungi Advocate inserted a provision stating that the swimming pool constituted a common utility. According to the Applicant, the provision was contrary to the The Judiciary of Kenya Doc IDENTITY: 2986344305959241552725285016 Tracking Number:OO4BKY2026 2/5

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true position and adversely affected his proprietary rights over the portion on which his house and swimming pool are situated. 4. The Applicant further states that Jamila Issa Mutungi subsequently obtained the mother title on the representation that it was required to facilitate the transfer of the various stakeholders’ shares. He avers that he has since obtained his deed plan and seeks to proceed with the registration of his portion and obtain a certificate of title. However, his attempts to have the mother title released to facilitate the registration have been unsuccessful. 5. The Applicant states that he instructed his advocate to demand the release of the mother title from Jamila Issa Mutungi Advocate, but the request was declined on the ground that the consent of the other stakeholders was required. He therefore contends that the registration of his portion has been made dependent upon the consent of the other stakeholders, contrary to the understanding communicated to him that the title would be made available whenever he required it. 6. The Applicant further alleges that, owing to his inability to read and understand English, advantage was taken of him when he executed the relevant documents. He alleges that Jamila Issa Mutungi Advocate, in collusion with Carl Weicker, who had been acting as his translator, caused him to execute documents containing terms which he did not understand and which he considers false and misleading. 7. On the foregoing basis, the Applicant urges the Court to order the release of the mother title to him for purposes of registering his portion in his name and, in the alternative, that the title be deposited in Court pending completion of the transactions. He further seeks an order compelling the Respondents to execute the requisite transfer documents in respect of his shares. 8. Subsequently, the Applicant filed a Further Affidavit sworn on 4th February 2025 in support of his further application seeking, through an amended Notice of Motion, to bring Stephanus Kruger into the proceedings as the 3rd Respondent. 9. The Applicant further states that the 2nd Respondent is no longer a party to the proceedings. He avers that the 2nd Respondent subsequently sold his interest in the subject property to Stephanus Kruger. The Applicant therefore contends that Stephanus Kruger ought to be joined to the proceedings as a party to enable the dispute to be fully and conclusively determined. 10. The Applicant consequently seeks to amend the Notice of Motion to include Stephanus Kruger as the 3rd Respondent, stating that his joinder is necessary for the matter to be brought to a reasonable and final conclusion. 2nd Respondents Case 11. The 2nd Respondent, Stephanus Kruger, opposed the application through a Replying Affidavit sworn on 24th April 2026. He states that he acquired a 9% interest in Subdivision No. 9330 (Original No. 9127/2/MN, CR. No. 27334) from Whitehand Duncan Airlie Roderick The Judiciary of Kenya Doc IDENTITY: 2986344305959241552725285016 Tracking Number:OO4BKY2026 3/5

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pursuant to a sale agreement dated 1st November 2023 and, consequently, became a coowner of the suit property. 12. The 2nd Respondent contends that the said sale agreement expressly provided, under Clause 7(ii), that the swimming pool constituted a common utility, thereby entitling all the co-owners to its use. He further states that the Applicant, who holds a 46% interest in the property, executed an authorization dated 30th October 2023 endorsing the sale and consenting to the transfer of Whitehand Duncan Airlie Roderick’s interest to him. 13. The 2nd Respondent further refers to the Applicant’s earlier sale agreement with the 1st Respondent dated 5th September 2015, pursuant to which the Applicant transferred 18% of his then 64% interest in the property. He states that the agreement similarly provided that the swimming pool and generator were common utilities. He therefore disputes the Applicant’s assertion that the provision relating to the swimming pool was secretly or improperly introduced into the agreement without his knowledge. 14. The 2nd Respondent maintains that the swimming pool, being a common utility, forms part of the common property of the co-owners and cannot be registered exclusively in the Applicant’s name without the consent of the other stakeholders. He states that the title has consequently been withheld to safeguard the proprietary interests of the co-owners. 15. The 2nd Respondent further states that during mediation, a surveyor was engaged to establish the respective interests of the co-owners and the nature of the common areas. He relies on a surveyor’s report dated 9th December 2025, which he contends confirmed that the property contains common areas shared by the co-owners and that acquisition of a sectional unit carries an undivided interest in the common areas. 16. He also states that the parties had agreed that expenses relating to the common utilities, including service charges, would be apportioned according to the number of units held by each co-owner, an arrangement which he contends was known to the Applicant. 17. On the foregoing basis, the 2nd Respondent urges the Court to dismiss the Chamber Summons dated 4th February 2025, maintaining that granting the orders sought would prejudice his proprietary interests and those of the other co-owners. 18. The Applicant filed a further affidavit wherein he maintains that the swimming pool is situated within his separately demarcated compound, which has its own gate, and that he personally constructed it. He therefore disputes the assertion that the swimming pool is a common utility. 19. The Applicant further maintains that each co-owner occupies a distinct and separately demarcated portion of the property. He denies that the 18% interest transferred to the 1st Respondent included any interest in the swimming pool or that there was any agreement for the pool or any other part of his portion to constitute common property. 20. The Applicant disputes the contention that he requires the consent of the other coowners to obtain title to his portion. He relies on the Sectional Properties Act, 2020, particularly Sections 5 and 6, and contends that he is entitled to have his unit registered The Judiciary of Kenya Doc IDENTITY: 2986344305959241552725285016 Tracking Number:OO4BKY2026 4/5

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and to obtain the requisite certificate. 21. The Applicant further disputes the validity and effect of the consent relied upon by the Respondents, stating that the document was presented to him for signature without translation despite his inability to understand English. He contends that he only subsequently became aware of its alleged contents and implications. 22. He also disputes reliance on matters arising from the failed mediation process and proposes that a Government surveyor be engaged to establish the physical demarcation of the respective portions and common areas, if any. 23. The Applicant consequently reiterates his request that the original title held by Issa Mutungi Advocates be released to enable him to register his portion and obtain the requisite certificate of title or lease from the Registrar of Lands, Mombasa. Analysis and determination. 24. The court has considered the applications, the supporting affidavits and the responses on record. The issue for determination is whether the application before court is merited. 25. The Applicant seeks inter alia, the release of the mother title, registration of his alleged 46% interest and an order compelling the Respondents to execute the transfer documents. He maintains that the swimming pool forms part of his separately demarcated portion, while the respondents contend that it is a common utility. The Applicant has also challenged the validity and effect of the contractual provisions relied upon by the Respondents and the circumstances under which they were executed. 26. It is the court’s opinion that the issues raised by the parties in the application directly concern their proprietary rights in the suit property. The court cannot determine, in these proceedings, the competing claims concerning the swimming pool, the validity of the agreements, the physical demarcation of the respective portions and applicant's ultimate entitlement to separate registration. 27. Section 19 of the Civil Procedure Act provides that; every suit shall be instituted in a manner as may be prescribed by the Rules. 28. Order 3 Rule 1 of the Civil Procedure Rules sets out the manner in which a suit is supposed to be instituted. 29. In the case of PMN v EKN [2023] KEELC 17784 (KLR) the court stated that; “Unfortunately, in the present case, the notice of motion is not accompanied by any plaint, petition or an originating summons. The applicant has simply moved the court by way of a miscellaneous application yet he is seeking substantive orders. In my view, the notice of motion has been made in a vacuum and is not a suit property so called. The failure by the Applicant to follow the laid down procedure prescribed by the rules goes to the root of litigation….” 30. Similarly, in Synergy Industrial Credit Limited v Mitchell Cotts Freight (K) Ltd [2020] KEHC 1927 (KLR) the court stated; Needless to say therefore, where a person is commencing a civil suit (in this instance to “enforce a civil action”), he needs to follow The Judiciary of Kenya Doc IDENTITY: 2986344305959241552725285016 Tracking Number:OO4BKY2026 5/5

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prescribed rules, to wit, the Civil Procedure Rules. Accordingly, Order 3 Rule 1 of the requires that: “Every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed.” Stated in simpler words, the above provisions of the Civil Procedure Rules mean that all suits must commence by way of a Plaint unless the rules prescribe otherwise. This Court is also alive to the argument that there are times when all that a person wants is an Order of court where the rights of the parties are not going to be determined. In such a case, it would be appropriate for such a party to file a miscellaneous application because the court is not being asked to determine any other issues between the parties. 31. In the circumstance, the court finds that the Applicant has approached the court through an unsuitable procedure as it is unsustainable for the substantive reliefs sought. 32. Consequently, the court finds that the Application is incompetent and is hereby struck out. The Applicant is at liberty to institute proper and appropriate substantive proceedings in which the rights and obligations of all parties claiming can be determined. 33. On costs, considering the nature of the dispute and the circumstances under which the application has been brought, each party shall bear their own costs. 34. Orders accordingly. SIGNED BY/FOR: ★ TH E JUDICIAR Y O F KENY A ★ HON. JUSTICE ANTONY O. OMBWAYO Mombasa Environment and Land Court Environment and Land Court Date: 2026-09-24 14:35:06 The Judiciary of Kenya Doc IDENTITY: 2986344305959241552725285016 Tracking Number:OO4BKY2026 6/5

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