High Court 1878 of 2013

The 1st Defendant opposed the Notice of Motion in affidavits sworn by its Director/Treasurer, Peter Githuka on 30th April 2013, 7th May 2013 and 4th June 2013 . The deponent initially stated that that the Plaintiff had not complied with a resolution of the 1st Defendant company made at a meeting held on 5th November 1986, that if a purchaser has a debt with the company on the purchase of a plot for 8 years he loses his or her claim to the said plot. It was therefore initially the position by the 1 st Defendant that the Plaintiff had no claim to L.R No. 10901/36 and L.R. No 10901/37, which belonged to the 1 st Defendant. It was also stated by the Deponent that after perusal of the records it was found that there was a title deed issued to the 2nd Defendant with respect to the property known as land parcel No. Ruiru Kiu Block 10 (Mahiira)/300 to whom ownership and possession had passed. A copy of the said title was attached. The deponent subsequently in the affidavit sworn on 4th June 2013 stated that the Plaintiff has been issued with a title in his name to the property known as Title Number L.R. No. RUIRU KIU BLOCK 10 (MAHIIRA) 1129, and has been advised to collect their said title but have not done so. The deponent attached a copy of the said title. It was further stated that a court has no jurisdiction to interfere with the internal management of companies acting within their powers, and that the 1 st Defendant has not done anything fraudulent, illegal or wrong. The 2nd Defendant, despite being served with the Plaintiff’s Notice of Motion and hearing notice, did not enter an appearance nor respond to the said Notice of Motion. The parties were directed to file written submissions, which they relied upon for the ruling herein. The Plaintiff’s counsel in submissions dated 10 th June 2013 argued that plot No. 58 was the one which after registration and issuance of title became Ruiru Kiu Block 10 Mahiira/300. Further, that the Plaintiff had established that the deceased was the owner of plot 58 and had made payments for it, and that the 1 st Defendant had also not disputed the authenticity of the plot certificate and other documents produced by the Plaintiff in relation to plot 58. The counsel further submitted that damages cannot adequately compensate the Plaintiff as each parcel of land is unique in character, and that the balance of convenience tilts in his favour as the land has been in his possession. Lastly, the counsel submitted that the suit property should be preserved and the Plaintiff given a chance to be heard, and cited various judicial decisions in this regard. The 1st Defendant’s counsel filed submissions dated 17th June 2013 and argued that the tests set out in Giella vs Cassman Brown & Co Ltd, (1973) EA 358 for the grant of an injunction had not been met. Further, that the Plaintiff has not shown a prima facie case as the 2nd Defendant has a title deed to the suit property and the Plaintiff does not, and the counsel cited various judicial decisions in this regard. The counsel also argued relying on the decision in Pioneer General Assurance Soicety Ltd & Another vs Aulfikarali Nimji Javer & Others, Nairobi High Court Case No. 120 of 1999 that the 1st Defendant had acted within its Memorandum and Articles of Association and their acts were intra vires. I have carefully read and considered the pleadings and arguments made by the parties herein. The issue for determination is whether the Plaintiff has met the requirements stated in Giella vs Cassman Brown & Co Ltd, (1973) EA 358 as to the grant of a temporary injunction. These are that the applicant must establish a prima facie case, and that he or she would suffer irreparable loss which may not be compensated by an award of damages. If the Court finds that the two requirements are not satisfied, it may decide an application on the balance of convenience. The first question I must therefore answer is whether the Plaintiff has established a prima facie case. The Plaintiff has provided evidence of a plot certificate dated 23 rd August 2005 issued to him by the 3 rd Defendant with respect to the suit property as his evidence of ownership. The 1 st Defendant have on the other hand brought evidence of a title deed issued to the 2 nd Defendant with respect to L.R No. Ruiru Kiu Block 10 Mahiira/300 which they claim to be the suit property, and which is not disputed by the Plaintiff.

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I therefore find that the Plaintiff has not established a prima facie case, and I am in this respect guided by the decision of the Court of Appeal in Dr. Joseph arap Ngok vs Justice Moijo ole Keiwa & 4 Others, Nairobi CA No 60 of 1997 that in the cases of double allocation a party who has been issued with a good title takes precedence over other equitable rights to the title. While I appreciate that the issue of whether the 2nd Defendant’s title is good title will have to be determined after full trial, it is my opinion that the existence of the said title is sufficient to deny the Plaintiff the injunction sought. Likewise, the issue raised as to whether the resolutions and decisions made by the 1 st Defendant were intra vires or whether they were fraudulent, can only be determined after the court has had the benefit of examining further evidence at full trial. In addition, the 1st Defendant also brought evidence of another title issued to the Plaintiff with respect to another parcel of land namely L.R. No. Ruiru Kiu Block 10 (Mahiira) 1129 as his allocation. I have perused the said title and note that it was issued on 10th April 2013 before the Plaintiff filed the suit herein on 17th April 2013. I am unable to find in these circumstances that the Plaintiff will suffer irreparable damage if the injunction sought is not granted. The Plaintiff’s Notice of Motion dated 20th May 2013 is accordingly denied, and the costs of the said motion shall be in the cause. Orders accordingly. Dated, signed and delivered in open court at Nairobi this ____9th____ day of ____October_____, 2013. P. NYAMWEYA JUDGE

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