Case ID:158410

Edward Kavai Nzioka & 7 others v Nzioka Mutwanyingi & 2 others [2020] eKLR

Case Metadata

Case Number:

Environment & Land Case 371 of 2017

Parties:

Edward Kavai Nzioka,Thomas Nzioka, Dickson Mwanthi Nzioka, Mbuva Nzioka, James Kimengei Nzioka, Kamuti Nzioka, Jonathan Mutunga Nzioka & Muthini Nzioka v Nzioka Mutwanyingi, Katuti Nzioka & Muthusi Kyenge

Date Delivered:

26 May 2020

Case Class:

Civil

Court:

Environment and Land Court at Makueni

Case Action:

Ruling

Judge(s):

Charles Gitonga Mbogo

Citation:

Edward Kavai Nzioka & 7 others v Nzioka Mutwanyingi & 2 others [2020] eKLR

Court Division:

Environment and Land

County:

Makueni

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT MAKUENI

ELC CASE NO. 371 OF 2017

EDWARD KAVAI NZIOKA ................................1

ST

PLAINTIFF/APPLICANT

THOMAS NZIOKA.............................................2

ND

PLAINTIFF/APPLICANT

DICKSON MWANTHI NZIOKA ......................3

RD

PLAINTIFF/APPLICANT

MBUVA NZIOKA.................................................4

TH

PLAINTIFF/APPLICANT

JAMES KIMENGEI NZIOKA .......................... 5

TH

PLAINTIFF/APPLICANT

KAMUTI NZIOKA ..............................................6

TH

PLAINTIFF/APPLICANT

JONATHAN MUTUNGA NZIOKA................... 7

TH

PLAINTIFF/APPLICANT

MUTHINI NZIOKA............................................. 8

TH

PLAINTIFF/APPLICANT

-VERSUS-

NZIOKA MUTWANYINGI .......................... 1

ST

DEFENDANT/RESPONDENT

KATUTI NZIOKA .........................................2

ND

DEFENDANT/RESPONDENT

MUTHUSI KYENGE.................................... 3

RD

DEFENDANT/RESPONDENT

RULING

1. The application for determination is dated 5

th

December, 2017 and was filed under certificate of urgency. It is brought under Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act, Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. It seeks;

a) Spent.

b) Spent.

c) THAT an interim order of injunction do issue prohibiting the Defendants/Respondents from evicting, subdividing, trespassing, encroaching or in any other manner interfering with the Plaintiff’s lawful use and occupation of land parcel number Nzaui/Kawala/472 and Nzaui/Kawala/170 pending the hearing and determination of the suit herein.

d) THAT costs be provided for.

2. The application is supported by the grounds on its face and the supporting affidavit of the 1

st

Applicant sworn on the same day. He deposed that he had been authorized by his co-applicants to swear the affidavit on their behalf.

3. The Applicants’ case is that the 1

st

Respondent being the registered owner of Nzaui/Kawala/472 and Nzaui/Kawala/170

(suit lands)

, shared his land to his family members including the Applicants and everyone was shown their respective share. The allocation was followed by occupation but the Respondents have re distributed the suit lands without the Applicants’ input. They are apprehensive that if the re distribution is allowed, they will be moved from the areas where they have constructed their houses to their detriment.

4. They exhibited certificates of official search for the suit lands as

EKN-1

, a document dated 14/10/2014 as

EKN-2

, photographs as

EKN-3

and a cash bail receipt as

EKN-4

.

5. The application is opposed through the replying affidavit sworn by the 1

st

Respondent on 07/12/2016. The gist of the opposition is that he has never distributed his land to any of his children and that the said allocation was forcefully done by the Applicants. He deposed that he has no intention of evicting the Applicants and that the suit was brought in bad faith to deny him a peaceful livelihood or to achieve hideous ends.

6. He exhibited a charge sheet as

NM-1(a)

to show that the 1

st

Plaintiff was arrested and charged with trespass.

7. Directions were given that the application be canvassed by way of written submissions. Accordingly, the parties complied and filed their respective submissions.

8. Relying on the principles enunciated in the

locus classicus

,

Giella –vs-Cassman Brown {1973] EA 358

, they submitted that they have established a

prima facie

case by demonstrating that they developed their portions pursuant to the distribution done by the 1

st

Respondent.

9. As for irreparable loss, they submitted that they have occupied and constructed on their portions and will suffer if the orders are denied.

10. Further, they submitted that the balance of convenience tilts towards issuing the orders so as to preserve the substratum of the suit.

11. The 1

st

Respondent submitted that he is the proprietor of the suit lands but the Applicants have been threatening, disturbing and dictating what to do with the parcels.

12. He submitted that the Applicants have already soiled their hands by insulting him and allocating themselves portions of the suit lands and as such, they cannot benefit from equitable remedies.

13. Relying on section 26 (1) of the Registered Land Act 2012, he submitted that his title as the registered owner can only be challenged on grounds of fraud, misrepresentation, illegality or corruption.

14. He has also relied on

Giella –vs-Cassman Brown

(supra) to submit that the Applicants have not established a

prima facie

case with probability of success. He contends that being the registered owner, he is the only one with the right to determine how sub-division of the suit lands will be done.

15. The 2

nd

Respondent is the wife of the 1

st

Respondent and is in full support of her husband’s position. She submitted that the Applicants’ claim against her has no basis and prays that her name be struck out from the suit.

16. The 3

rd

Respondent is the grandson of the 1

st

Respondent and is also in support of his grandfather’s position. He submitted that he has no legal basis of dealing with the suit lands and is therefore an unnecessary party in the proceedings.

17. Having considered the application, the response and the rival submissions, the only issue for determination is whether the application has merits.

18. It is not in dispute that the 1

st

Respondent is the registered owner of the suit lands. The Applicants claim that he has already distributed his land to them and are relying on the document dated 14/10/2014 which states as follows;

“It has been agreed between Nzioka and his children that the land Nzaui/Kawala/170 and 472 shall be divided to the sons and not the wives…he has divided the land and cursed whoever shall sell it including grand children except selling to the brothers”

19. The document is signed by the Applicants and thumb printed by the 1

st

Respondent. The 1

st

Respondent has however disowned the Applicants’ claims.

20. The charge sheet

,

NM-1(a)

, shows that on 30/11/2017, the 1

st

Applicant was charged with trespassing on parcel 170 and interfering with its demarcated boundary. This event happened before this application was filed in Court thus lending credence to the 1

st

Respondent’s version that indeed, it is the Applicants who have been harassing him and dictating what to do. In my view, this application is only meant to sanitize their actions.

21. Further, it is curious that the distribution was allegedly sanctioned by the 1

st

Respondent in 2014 but up to now, the Applicants are yet to be registered as the proprietors of their individual portions. In my view, the delay in transferring the portions plus the criminal charges negates the alleged distribution.

22. Be that as it may, the 1

st

Respondent has a Constitutional right to own and hold his property. Further,

section 25 (1)

of the

Land Registration Act 2012

provides as follows;

“The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of Court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject;

a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

b) to such liabilities, rights and interest as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.”

23. The Applicants claim is not in the exception recognized in the above section neither is it an overriding interest as per section 28 of the Land Registration Act. Accordingly, the 1

st

Respondent cannot be prohibited from dealing with his own land without a lawful justification and as such, the Applicants have not demonstrated that they have a prima facie case with probability of success.

24. The 1

st

Respondent has also deposed that he has no intention of evicting them from the suit lands thus allaying the worries of irreparable harm.

25. The upshot is that the application has no merit and I proceed to dismiss it with costs to the Respondent

Signed, dated and delivered at Makueni via email this 26

th

day of May, 2020.

MBOGO C.G.,

JUDGE.

Court Assistant: Mr. G. Kwemboi