Nicholas & 29 others v Stephen Ndeleva Muasya & 5 others

PHILIP MBUTHIA………………………………..…………….18TH PLAINTIFF JOSIAH GUANTAI KABOGO…………...……..………….…19TH PLAINTIFF MAURICE KIMANI……………………..………..……………20TH PLAINTIFF MOSES OSORE………………….……………..……………21ST PLAINTIFF LEXINAH IRAMWENYA…………………..…………...……22ND PLAINTIFF NICHOLAS…………………..………………………..………23RD PLAINTIFF PETER MABEY…………………………………..…………….24TH PLAINTIFF PAUL NDORO…………………………………...……………25TH PLAINTIFF PETER KIONI…………………..……………………...………26TH PLAINTIFF WILLIAM KISAVI…………………..………………….………27TH PLAINTIFF THADDEUS OMWENGA……………………….……………28TH PLAINTIFF JUDITH KOMEN……………………..…………..……………29TH PLAINTIFF JUSTUS OMARI KIARI……………………..…..……………30TH PLAINTIFF VERSUS STEPHEN NDELEVA MUASYA …………………. ……..1ST DEFENDANT MALIA NDULU WAMBUA…………………………. ……2ND DEFENDANT SAMMY KISILA WAMBUA…………………………. ...…3RD DEFENDANT MUASYA WAMBUA…………………………. ………...…4TH DEFENDANT HELEN MUNYIVA NGULI…………..……………….……5TH DEFENDANT ISAAC WAITA NGULI…………………….…...……. ……6TH DEFENDANT PETER MWANGI WAITITU…………………...……. ……7TH DEFENDANT KOMAROCK BUILDING DEVELOPMENT COMPANY LIMITED. ………….……8TH DEFENDANT RULING Coming before me for determination is the Notice of Motion dated 4th February 2013 in which the Plaintiffs/Applicants seek orders of a temporary injunction restraining the Defendant/Respondents from entering, evicting, trespassing, alienating, demolishing, uprooting, destroying, dealing and or interfering in any way whatsoever with their peaceful stay and occupation of all that parcel of land known as L.R.

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No. 12715/658 (hereinafter referred to as the “Suit Property”) pending the hearing and determination of this application and suit, together with costs. The said application is supported by the grounds appearing on the face of it together with the Supporting Affidavit of the 1st Plaintiff, Joel Muiruri Maganjo, sworn on 4th February 2013 in which he stated that between the year 2000 to 2010, he and his co-plaintiffs bought individual parcels of land measuring 40 feet by 80 feet on the Suit Property from the 8 th Defendant of which the 7th Defendant was the director, upon which they took possession and constructed palatial and splendid houses wherein they have resided now for almost 10 years. He further averred that this was accomplished with the full knowledge and consent of the 1st to 6th Defendants. He further averred that in the year 2008, the 1st -6 th Defendants filed HCCC. No. 122 of 2008 against the 7 th Defendant at Machakos High Court over the Suit Property without their knowledge and without their being made parties, which suit was concluded in favour of the 1st -6th Defendants wherein the 7th Defendant and all who claim under him were declared trespassers on the Suit Property. He further averred that he and his co-plaintiffs were in occupation of the Suit Property as innocent purchasers for value without notice and should therefore not be condemned alongside the 7 th Defendant without being given a chance to be heard and to defend themselves. He further averred that the District Commissioner Athi River accompanied by the OCPD Athi River and the OCS Athi River and Mlolongo Police Station together with the 1-6th Defendants and their Advocates visited the Suit Property and issued an oral eviction of he and his co-plaintiffs before the 4 th February 2013 thereby necessitating the filing of this suit. The Application is contested. The 1st – 6th Defendant filed the Replying Affidavit by the 2 nd Defendant, Malia Ndulu Wambua, sworn on 28th February 2013 in which she stated that the Suit Property is registered in the name of John Nguli Muasya (deceased), Philip Wambua Muasya (deceased) and Stephen Ndeleva Muasya. A copy of the Certificate of Title in support was produced. She further stated that she together with the 3rd and 4th Respondents are administrators of the estate of her late husband Philip Wambua Muasya and that the 5th and 6th Defendants were the administrators of the estate of the late Martha Ndinda Nguli wife of the late John Nguli Muasya. She further disclosed that on 1 st February 2005, she together with the 2nd and 6th Respondents entered into a Sale Agreement with the 7 th Defendant to sell to him the Suit Property at a consideration of Kshs. 5,250,000/-. She further stated that they entered into a further agreement with the 7th Defendant whereof the date for payment of the balance of Kshs. 4 million was extended to 22nd March 2005. She stated that the 7th Defendant failed to honour that agreement even after being issued with an additional notice through their Advocates. She further states that following that default by the 7th Defendant, they proceeded to file HCCC No. 2221 of 2007 at Nairobi against him which was later transferred to the Machakos High Court under HCCC No. 122 of 2008. She further averred that in that suit, the court held that the 7th Respondent has no right to deal with the Suit Property in any manner and that his occupation thereof was as a trespasser and that the same applied to his agents and those in occupation under his name. She further stated that the decree extracted in that suit was executed by demolishing the structures put up on the Suit Property and the occupants thereof were evicted thus this application has been overtaken by events. She further averred that there was no sale agreement and/or contract between her and the applicants and that she was a stranger to the 8 th Defendant and to the documents of ownership issued by it to the applicants. She further averred that there was not a single sale agreement annexed to the affidavit in support of the application between the applicants and herself or between the applicants and the 7 th Defendant or between the Applicants and the 8th Defendant which can be relied upon. She further denied that the applicants occupied the Suit Property with the knowledge and consent of the 1 st – 6th Defendants. She also averred that nothing had been produced to show that the 8th Defendant had any capacity or interest in the Suit Property to pass over to the applicants. In deciding whether to grant the temporary injunction, I wish to refer to and rely on the precedent set out in the case of GIELLA versus CASSMAN BROWN (1973) EA 358 in which the conditions for the grant of an interlocutory injunction were settled as follows:

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“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” Have the Plaintiffs/Applicants made out a prima facie case with a probability of success? In the case of MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS (2003) KLR 125, a prima facie case was described as follows: “a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” Looking at the facts of this case, the Plaintiffs claim that they bought portions of the Suit Property from the 8th Defendant and were issued with various documents indicating their title including ownership certificates, beacon certificates and letters of allotment. However, nothing has been produced before this court to show that the 8th Defendant had any proprietary rights over the Suit Property which it could pass on to the applicants. And even if the 8 th Defendant had such rights, no sale agreement or otherwise has been produced to show that the 8th Defendant has transferred its ownership rights to the applicants. The documents of ownership produced by the applicants do not in my opinion, at this interlocutory stage of these proceedings, amount to much. Further, I agree with the 1 st to 6th Defendants that there is no privity of contract between them and the applicants. At no stage did the two sides transact with each other. It therefore follows that the applicants cannot claim anything against the 1 st to 6th Defendants, who, as has been shown in the documents produced, have control over the Suit Property. To that extent therefore, my finding is that the applicants have failed to show that they have a prima facie case with a probability of success. Arising from the foregoing, I am of the view that the Plaintiffs do not have a right which has apparently been infringed capable of protection by means of an interlocutory injunction. Accordingly, I find that the Plaintiffs have not established a prima facie case with a probability of success. That being my finding, I see no need in further interrogating whether the other principles in the Giella Case have been met. Accordingly, I hereby dismiss this application. Costs shall be in the cause. SIGNED AND DELIVERED AT NAIROBI THIS 1st DAY OF NOVEMBER 2013 MARY M. GITUMBI JUDGE

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