Case ID:167796

Jones John Kitili Wambua & 3 others v Kenya Commercial Bank Limited & 2 others [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 5 of 2020

Parties:

Jones John Kitili Wambua, Joyce Syokau Kitili Wambua, Lucy Wanagari Kamau & Jospeh Kiarie Kamau v Kenya Commercial Bank Limited, Nancy Njeri Ndungu & Roman Kithinji Mutuamwari

Date Delivered:

10 Dec 2020

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Ruling

Judge(s):

Lucy Nyambura Gacheru

Citation:

Jones John Kitili Wambua & 3 others v Kenya Commercial Bank Limited & 2 others [2020] eKLR

Advocates:

Ms Muritu Holding Brief for Mr. Muthomi for the Plaintiffs/Applicants

Ms. Cheruiyot for the 1st Defendant/ Respondent

Court Division:

Environment and Land

County:

Kiambu

Advocates:

Ms Muritu Holding Brief for Mr. Muthomi for the Plaintiffs/Applicants

Ms. Cheruiyot for the 1st Defendant/ Respondent

History Advocates:

One party or some parties represented

Case Outcome:

Application allowed with costs to the Plaintiffs/ Applicants.

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 AND LAND COURT AT THIKA

ELC CASE NO. 5 OF 2020

JONES JOHN KITILI WAMBUA...........................1

ST

PLAINTIFF/APPLICANT

JOYCE SYOKAU KITILI WAMBUA....................2

ND

PLAINTIFF/APPLICANT

LUCY WANAGARI KAMAU.................................3

RD

PLAINTIFF/APPLICANT

JOSPEH KIARIE KAMAU.....................................4

TH

PLAINTIFF/APPLICANT

VERSUS

KENYA COMMERCIAL BANK LIMITED.......1

ST

DEFENDANT/RESPONDENT

NANCY NJERI NDUNGU...............................2

ND

DEFENDANT/RESPONDENT

ROMAN KITHINJI MUTUAMWARI...............3

RD

DEFENDANT/RESPONDENT

RULING

The matter for determination is the

Notice of Motion Application

dated

23

rd

January 2020,

by the Plaintiffs/ Applicants seeking for orders that;

1. A temporary injunction be and is hereby issued restraining the Defendants, their agents, servants, employees and or anyone claiming under them from selling, offering for sale, advertising for sale, taking possession of, transferring, further charging, encumbering, subdividing, trespassing and or interfering in any manner whatsoever with Land

parcel No. 13537/247

Title No.

I.R No. 62328

pending the hearing and determination of the suit and or further order of this Court.

2. Any other order as the Court may deem fit and first to grant.

3. Costs of Application be provided for.

The Application is premised on the grounds that the Plaintiffs/ Applicants bought the suit property from

Francis Ndung’u Kiania(Deceased)

between

1995-1998

and that the Plaintiffs/ Applicants have constructed their matrimonial homes and residential houses thereon. That pursuant to a Certificate of Confirmation of Grant issued in

Succession Cause

No

.

147 of 2011,

the suit property was distributed to the Plaintiffs/ Applicants. Further that the Administrator of the Estate of

Francis Ndung’u Kiania

known as

Josephine Wanjiru Ndungu,

obtained registration of the said parcel of land in her name by transmission, pending transfer to the lawful beneficiaries, the Plaintiffs/ Applicants herein but she passed away before effecting the sad transfer.

That the 2

nd

Defendant/Respondent being a daughter to

Josephine Wanjiru Ndung’u,

took advantage of the situation and without the Plaintiffs/ Applicants knowledge petitioned for grant in

Josephine Wanjiru Ndungu’s

Estate and illegally applied for distribution of the said parcel of land to herself. It was contended that

Josephine Wanjiru Ndungu

did not have proprietary right over the suit property and was only registered as the owner pending transmission to the Plaintiffs/ Applicants. That the 2

nd

Defendant/Respondent illegally obtained registration of the suit property in her name and in collusion with the other Defendants/Respondents unlawfully and fraudulently used the suit property as collateral for a loan facility of

Kshs. 5 million.

That by design and to further defraud the Plaintiffs/ Applicants, the 2

nd

and 3

rd

Defendants/Respondents failed to pay the loan and the 1

st

Defendant/Respondent issued

illegal Statutory Notices

in purported exercise of its

Statutory Power of Sale

. That the Public Auction was scheduled for

4

th

March 2020,

and the Defendant/Respondent intend to sell the suit property for a reserved selling price of

Kshs.45 million

to recover

Kshs.4 million

and share proceeds thereof to the Plaintiffs/ Applicants detriment. That unless restrained, the Plaintiffs/ Applicants will suffer irreparable loss and damage since the 2

nd

and 3

rd

Defendants/Respondents are not capable of paying over

Kshs. 45 million

to the Plaintiffs/ Applicants.

In his Supporting Affidavit,

Jones John Kitili Wambua,

the 2

nd

Plaintiff/ Applicant herein averred that he had authority of the rest of the Plaintiffs/ Applicants to swear the Affidavit. He further averred that

Francis Ndungu Kiania,

subdivided the Land into four blocks and named them A, B, C and D. That on

24

th

August 1998,

he sold L

.R No. 13537/247A

to

Jones Kitili Wambua

and

Joyce Syokau Kitili Wambua

. On

24

th

October 1998

he sold

L.R 13537/247B

to the 1

st

Plaintiff/Applicant , In the year

1995,

he sold

L.R 13537/247C

to the 4

th

Plaintiff/ Applicant, that further in

1995

he sold

L.R 13537 /247D

to

Zakayo Gitau Kamau

the late husband to

Lucy Wangari Kamau

the 3

rd

Plaintiff/ Applicant. Subsequently

Francis Ndungu Kianaia

obtained Land Control Boards Consent to transfer the subplots to the Plaintiffs/ Applicants. He further averred that Plaintiffs/ Applicants took possession of their respective subplots and extensively developed the same. That before the transfer, the said

Francis Ndungu

passed away on

16

th

January 2007.

That the deceased’s widow petitioned for letters of Administration intestate and she obtained all the necessary consents from the beneficiaries and the grant was confirmed with

IR 62328(L.R 13537/247)

share as follows;

0.1310Ha

going to

Jones Kitili Wambua

and

Joyce Syokau Kitili Wambua

, further another

0.1012

Ha going to

Jones Kitili Wambua

and

Joyce Syokau Kitili Wambua, 0.1012 Ha

going to

Lucy Wangari Kamau

and

0.1012 Ha

going to

Joseph Kiarie Kamau.

He contended that the 2

nd

Defendant/Respondent is

Francis Ndung’u’s

daughter and that all the surviving beneficiaries of the Estate of the deceased are aware of the Plaintiffs/ Applicants rights and interest in the suit property .That they voluntarily included their names in the list of creditors and or interested parties in the Chief’ letter dated

17

th

August 2009.

Further that on

14

th

January 2014, Nancy Njeri Ndung’u

filed Summons for Revocation of Grant issued in respect of the Estate of

Francis Ndungu Kiania

and on

25

th

November 2019,

she withdrew the Summons. That on

30

th

December 2019,

the Plaintiffs/ Applicants were surprised when an Auctioneer served them with a

45 days

Redemption Notice, which described the 3

rd

Defendant/ Respondent as the chargor while the 2

nd

Defendant/Respondent was named as the owner of the suit property. He contended that the 2

nd

Defendant/ Respondent did not have a good title over the suit property to warrant her charge or guarantee any person or entity a loan and or use the suit property as collateral. That Defendants/Respondents committed fraud. He particularised fraud as obtaining registration of the suit property by the 2

nd

Defendant/ Respondent unlawfully,, purporting to redistribute the suit property to the 2

nd

Defendant/ Respondent vide the Estate of

Josephine Wanjiru Ndungu

who was merely a trustee, colluding to use the land as collateral, accepting the certificate of title as collateral while the entries indicate that

Josephine Wanjiru Ndungu,

was registered by way of transmission and the 1

st

Defendant/Respondent did not bother to call for certificate of grant, colluding to unlawfully sell the suit property, intermeddling with the suit property , purporting to issue unlawful statutory notices and to have a good statutory power of sale.

The Application is opposed and the 1

st

Defendant through

Peter Maina Mwirigi

its branch Manager swore a Replying Affidavit on

30

TH

April 2020

and averred that pursuant to an Application made by

Roman Kithinji M’Tuamwari

t/a

Kasajah Agencies

vide letter dated

13

th

October 2016

and a corrigendum to the letter of offer dated

23

rd

November 2016

, the 1

st

Defendant/ Respondent offered to advance the 3

rd

Defendant/ Respondent

Kshs.5,000,000/=

subject to the terms and conditions set out in the offer letter. That the 3

rd

Defendant/ Respondent duly executed the offer letter and the 2

nd

Defendant/ Respondent availed the title document for the suit property being the personal representative of the Estate of

Francis Ndungu Kiania.

That on the strength of the Grant and Certificate of Confirmation of Grant, a legal charge duly secured by the 2

ND

and 3

rd

Defendants/ Respondents was registered on

31

st

January 2017

in favour of the 1

st

Defendant/ Respondent to secure

Kshs. 5,000,000/=.

That the 2

nd

and 3

rd

Defendants/Respondents defaulted in repaying the loan and on

22

nd

May 2019

, the 1

st

Defendant/Respondent notified the chargor and the borrower of the continued state of default and issued them with a

90 days

Notification of Sale,

advising them to regularize the account to avoid exercise of Statutory Power of Sale. That upon lapse of the

90 days

and the account being in arrears, the 1

st

Defendant/ Respondent issued the

40 days

Statutory Redemption

Notice

on

8

th

October 2019

. Further that the 1

st

Defendant’s/Respondent’s firm of Auctioneers also issued to the 2

nd

and 3

rd

Defendants/Respondents a

45 days Redemption Notice

and the auction was scheduled for

4

th

March 2020

.

It was his contention that all the

Statutory Notices

were separately addressed to the 2

nd

and 3

rd

Defendants/Respondents and further served upon the available tenants on the suit property. That at

10

th

December 2019,

the total debt outstanding was

Kshs 4,257,638.85

which sums remain outstanding and continues to accrue interest. He averred that the 1

st

Defendant/ Respondent is neither privy to any alleged unlawful registration of the suit property, collusion to use the suit property as collateral nor that the 2

nd

Defendant/ Respondent was only a trustee. That the 1

st

Defendant/Respondent did not have any notice of any defect in the title as it carried out

due diligence

and therefore the

bank

cannot be faulted for accepting the suit property as a security for loan advanced. That a pre-registration search conducted by the bank revealed there was no other parties registered against the title of the suit property.

That his Advocate has advised him that the Plaintiffs/ Applicants are not forthright with the Court and in the absence of a

title

superior than the title in the 1

st

Defendant’s/Respondent’s possession, then they remain strangers concerning the suit properties thus they lack

locus standi

to institute these proceedings. Further that without any proof of participation in the alleged fraud, the

Charge

registered against the title is valid. It was his contention that the Plaintiffs/Applicants have failed to meet the basic threshold that would entitle them to the order sought. He urged the Court to dismiss the Application.

The application was canvased by way of written submissions and the Plaintiff’s/Applicants and the 1

st

Defendant/Respondent filed written submissions which the Court has carefully read and considered. It is the Court’s considered view that the issue for determination is

whether the Plaintiff/ Applicants are entitled to the Injunctive orders sought.

The Plaintiffs/ Applicants in their Application have averred that thy bought the suit property from one

Francis Ndung’u Kiania.

That though he had subdivided the suit property and given them possession, he died before he could transfer to them their respective shares. However, his wife was granted

Letters of Administration

to his Estate and the Plaintiffs/ Applicants were listed as beneficiaries. Further, before she could also transfer to them, she unfortunately passed on. That the 2

nd

Defendant/ Respondent took advantage and used the suit property to secure a loan which she has defaulted to pay and the 1

st

Defendant/ Respondent is seeking to exercise its Statutory Power of Sale. The Plaintiffs/ Applicants have sought the Court’s intervention to restrain the sale of the suit property as the same is valued at

Kshs. 45 million

and the 2

nd

and 3

rd

Defendants/ Respondents would not be in a position to refund them the said amount of money .

The Plaintiff’s/ Applicants having sought for injunctive orders, they should satisfy the principles as set out in the case of

Giella…Vs… Cassman Brown & Co. Ltd 1973 EA 358

, where the court held:-

“The conditions for granting a temporary injunction in East Africa are well known and these are:

First

, the Applicant must show a prima facie case with a probability of success.

Secondly

, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which might not adequately be compensated by an award of damages.

Thirdl

y, if the Court is in doubt, it will decide an application on the balance of convenience. See also

E.A Industries ..Vs..Trufoods (1972) EA 420.”

The said principles are sequential and the Plaintiffs/ Applicants ought to satisfy all of them before injunctive orders can be issued. Have the Plaintiffs/Applicants herein established a prima facie case?.

A

prima-facie

case was described in the case of

Mrao Ltd…Vs…First American Bank of Kenya Ltd & Others (2003)KLR

, to mean:-

“

A case in 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.”

Did the Plaintiffs/ Applicants have a right to the suit property that is likely to be infringed? The Court has gone through the documents provided by the Plaintiffs/ Applicants in their supporting Affidavit. The Court notes that in Succession Cause No.

147 of 2011,

in the ‘Estate of

Francis Ndung’u Kiania’

, one

Josephine Wanjiru Ndung’u

who was the wife to the deceased, petitioned for the said Letters of Administration. Further from the Chief’s letter in support of the said Succession Cause, the Plaintiffs/ Applicants were listed as beneficiaries. Further the Court has also seen the Supporting Affidavit in support of the Summons for Confirmation of the Grant sworn by the said

Josephine Wanjiru Ndungu

on

12

th

September 2012,

in which the mode of distribution of the suit property indicated that the Plaintiffs/ Applicants would share the suit property as per the distribution listed by the Plaintiffs/ Applicants in their Supporting Affidavit.

Therefore, it is the Court’s considered view that the Plaintiffs/ applicants have an interest and or rights over the suit property. Further it is evident that the 2

nd

and 3

rd

Defendants/ Respondents used the suit property to secure a loan from the 1

st

Defendant/ Respondent . They have failed to repay the said loan the 1

st

Defendant/ Respondent has sought to exercise its Statutory Power of Sale. A public auction date had been given.

Therefore, it is clear that the Plaintiffs/ Applicants rights have been infringed and the same calls for a rebuttal. The Court finds and holds that the Plaintiff/ Applicants have established that they have a prima facie case, with probability of success at the trial.

The Court notes that the 1

st

Defendant/ Applicant, the bank has stated it is not privy to any alleged fraud and without any proof of its participation, the charge is valid. Further that the transfer of the suit popery was not affected. However, these are disputed facts that the Court cannot deal with at this interlocutory stage.

Having found that the Plaintiffs/ Applicants has established a prima facie case, the Court must go further and establish whether the Plaintiffs/Applicants will suffer irreparable loss.

Irreparable loss

’ was described in the case of

Paul Gitonga Wanjau…Vs…Gathuthi Tea Factory Co. Ltd & 2 Others, Nyeri HCC No.28 of 2015

, as

simply injury or harm that cannot be compensated by damages and would be continuous.

The Plaintiffs/ Applicants have alleged that there are structures on the suit property. They have further averred that the said structures are their residential houses and matrimonial homes. If the suit property is sold, and in the end the Plaintiffs/ Applicant are found to legally own the said property, they would have suffered substantial loss as they would have been displaced. Further the 2

nd

and 3

rd

Defendants/Respondents would not be in a position to refund them the monies given that they have defaulted in the loan repayment of

Kshs. 5 million,

which is way less than the value of the suit property

Further an owner of a suit property cannot be expected to take damages in lieu of his rights over the suit property. See the case of

Niaz Mohammed Janmohammed …Vs… Commissioner for Lands & 4 Others (1996) eKLR

, where the Court held that:-

“It is no answer to the prayer sought, that the Applicant may be compensated in damages. No amount of money can compensate the infringement of such right or atone for transgression against the law, if this turns out to have been the case. These considerations alone would entitle the Applicant to the grant of the orders sought”.

Therefore, the Court finds and holds that the Plaintiffs/ Applicants will suffer irreparable loss which cannot be compensated by an award of Damages.

The third Principle is that if the Court is in doubt, then it is required to decide the case on a balance of convenience. The balance of convenience always

tilts

in favour of

maintaining the status quo

. However, the Court is not in doubt herein. Further, even if the Court was to decide on the said balance of convenience, it would tilt in favour of the Plaintiffs/ Applicants herein, who are in possession of the suit property.

Having considered the available evidence, the Court finds and holds that the Plaintiffs/ Applicants have met the threshold for grant of the

Injunctive orders

and are therefore entitled to the orders sought in the instant Notice of Motion, Hence the

Notice of Motion Application

dated

23

rd

January 2020,

is found

merited

and the same is

allowed

entirely with costs to the Plaintiffs/ Applicants.

It is so ordered.

Dated, signed

and

Delivered

at

Thika

this 10

th

day

of

December, 2020.

L. GACHERU

JUDGE

10/12/2020

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Ruling

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Ms Muritu Holding Brief for Mr. Muthomi for the Plaintiffs/Applicants

Ms. Cheruiyot for the 1

st

Defendant/ Respondent

No Appearance for the 2

nd

Defendant/ Respondent

No Appearance for the 3

rd

Defendant/Respondent

L. GACHERU

JUDGE

10/12/2020