JENIFFER NJERI WANJOHI VS ROSE WAKARIA GATHENJI

1. The Notice of Motion dated 31st of October 2023, seeks the following orders:
1. Spent.
2. Spent
3. That the defendant by themselves, servants or agents be restrained by way of temporary injunction from entering, disposing, building, charging or dealing in any manner whatsoever with title number KONYU/BARICHO/2387 together with all resultant subdivisions thereto until further orders of this Court.
4. That the Honourable Court be pleased to issue an order inhibiting registration of any dealings relating to title No. KONYU/BARICHO/5162- KONYU/BARICHO/5187(being resultant subdivisions of L.R. KONYU/BARICHO/2387) until the hearing and determination of this suit.
5. That costs of this application be provided for
2. The application is supported by the affidavit of the Plaintiff/Applicant sworn on 1st November 2023. The grounds in support of the application are that the purported transfer of Konyu/Baricho/2387 on 3rd November 2011 to one Simon Githinji Ndirangu was fraudulent and as a result of a corrupt scheme having regard to the fact that the registered proprietor of the land died on 23rd February 2001. That no succession proceedings have ever been initiated or concluded in respect of the estate of Jedida Kabecha Mathenge save for the limited grant issued to the Plaintiff vide Karatina Succession Cause No. 261 of 2023.
3. The Applicant claims that no valid title has been transferred to Simon Githinji Ndirangu capable of being transmitted to the Administrator of his estate. That all subsequent dealings with LR Konyu/Baricho/2387 or any resultant subdivisions are invalid and incapable of transferring good title.
4. The Applicant claims that Land Parcel number Konyu/Baricho/2387 was registered in the name of one Jedidah Kabecha Mathenge(Deceased), who is her grandmother, for whose estate no substantive succession proceedings have been instituted. She deposed that she is the closest surviving relative of the deceased and that she has been in occupation of the suit land together with her children.
5. Some time in the year 2022, the Applicant states that she witnessed some illegal activities on the suit land, including demarcation and surveying. She sought help from the provincial administration without success and was not able to initiate any legal action due to ill health and financial limitations.
6. Sometime in September 2023, the Applicant instructed her Counsel to undertake an inquiry at the Lands Registry, after which she discovered a series of illegal activities had occurred, namely:
i. On 3rd November 2011, the suit property was mysteriously and fraudulently transferred from the deceased’s name to one Simon Githinji Ndirangu. This said person is unknown to the Applicant.
ii. On or about 10th February 2020, the subject property was transmitted to the 1st Defendant herein, through Karatina PM’s Succession Cause 81of 2019. The said 1st Defendant is also unknown to her.
iii. On 30th September 2020, the 1st Defendant transferred the suit property to the 2nd defendant, who is also unknown to the Applicant.
iv. On 11th December 2020, the 2nd Defendant subdivided the suit property into 25 parcels, being Konyu/Baricho/5162-5187, some of which he has now transferred to other defendants named herein.
7. The Applicant therefore deposes that the aforesaid transaction of Simon Githinji Ndirangu done on 3rd November 2011 is illegal, null and void as it was done over ten years after the demise of the registered proprietor and without due process and was therefore incapable of passing any good title.
8. In view of the foregoing, the Applicant is apprehensive that the estate of Jedidah Kabecha Mathenge stands to lose the only property comprised in her estate unless further dealings relating to the suit property are preserved, pending hearing and determination of this suit.
9.  The Applicant’s case therefore is that further dealings with the resultant subdivisions will cause irreparable harm and loss and urged this Court to grant the prayers sought therein the application.

The 1st -12th Respondents’ Case
10.  Counsel for the 1st -12 Respondents filed Grounds of Opposition dated 14th December 2023 stating that the application is res judicata as similar claims by the same Applicant had been dismissed in Nyeri ELC No.323 of 2014 between the Plaintiff herein vs Christopher Muchomba Warui and Land Registrar Nyeri on 11/2/2019.
11. The 1st Respondent also swore an affidavit and deposed that she is the wife of the late Simon Githinji Ndirangu, who purchased the suit property from the original owner, Jedidah Kabecha Mathenge sometime in the year 1997. That they attended the Land Control Board and obtained consent and the suit land was duly transferred to her late husband.
12. According to the 1st Respondent, the original owner of the suit premises, Jedidah Kabecha Mathenge, who is grandmother to the plaintiff's husband had divided her land into several portions from her original parcel of land registration Konyu/Baricho/154 and gave the plaintiff one portion, which is Konyu/Baricho/2339 where the plaintiff has settled to date, she retained Konyu/Baricho/2340 which she further subdivided into Konyu/Baricho/2387,2388 & 2389.
13. Jedidah Kabecha Mathenge(Deceased) sold the portion registration No.Konyu/Baricho/2387 to the 1st Respondent’s husband, Konyu/Baricho/2389 was given to his other grandson namely Abraham Mbuthia Muriithi and Konyu/Baricho/2388 was given to the plaintiff. After her husband's death, she filed Karatina Succession cause 81/2019 and the Konyu/Baricho/2387(the mother title of the suit premises) was transmitted to her on 10/2/2020 and she exhibited the said entry on the green card as entry no.7.
14. The 1st Respondent’s case therefore is that it is unfair for the Plaintiff /Applicant to wait all these years until the original owner is dead, and wait further until her late husband passes in 2016 and a further 7 years to bring the instant suit in 2023. She deposed that the application is an afterthought and the same should be dismissed to allow the parties call and cross examine evidence in the main suit since her husband passed her good title devoid of fraud.
Applicants’ Submissions
15. Counsel for the Plaintiff/Applicant submitted tat the Honourable Court should infer that none of the Respondents have a valid title to the suit properties since the genuine title holder Jedidah Kabeche Mathenge is deceased and no grant of letters of administration have been obtained.
16. Counsel cited and relied on the following authorities as they urged the Court to uphold the sanctity of the title:
Arthi Highway Developers Ltd v. Westend Butchery & 6 others(2015)eKLR, MacFoy vs United Africa Co. Ltd(1961) 3ALL ER 1169, Civil Appeal 465 of 2019 Wambui vs Mwangi & others and ELC Case No.445 of 2015-Margarina Saniako Misoi & another bs Robert Limo Kipchumba and others(2023)KEELC 16315(KLR)eKLR

1st -12th Respondents’ Written Submissions
17. Counsel for the 1st -12th Respondents submitted that the suit land is a resultant subdivision of Konyu/Baricho/154, which belonged to Jedidah Kabecha Mathenge(deceased). When she was still alive, she subdivided her land into 3 portions: Konyu/Baricho/2339, 2340 & 2341.
18. She gave Konyu/Baricho/2341 to her grandson, called Abraham Mbuthia, who he sold it to Christopher Muchomba Warui. The plaintiff herein sued the said Christopher Muchomba for fraud after Abraham Mbuthia died for fraud in Nyeri ELC case 323/2014, and the same was dismissed in this court on 11th February 2019.
19. The parcel Konyu/Baricho/2339 was given to the plaintiff /applicant, and that is where she is settled to date. Land Parcel Konyu/Baricho/2340 was subdivided by the late Jedidah into 3 portions which are Konyu/Baricho/2387, Konyu/Baricho/2388 and Konyu/Baricho/2389. While still alive, in 1997, the original owner sold parcel Konyu/Baricho/2387 to the 1st defendant’s husband as per the application for Land Control Board consent filed in the list of documents. Jedidah passed away in the year 2001. Possession of this land was given immediately as per the 1st respondent's averment in the replying affidavit, and the plaintiff /applicant never complained.
20. The 1st defendant's husband (Simon Gathinji Ndirangu) died in the year 2016. The 1st respondent filed Succession 81/2019 at Karatina law courts and the said land was distributed to her. Nobody objected or protested. The 1st defendant, as registered owner, sold the land Konyu/Baricho/2387 to the 2nd defendant and transfers were effected on 30/9/2020. Subsequently, the 2nd respondent subdivided this land into Konyu Barichu/5162-5187 and sold some portions while retaining others. It is these subdivisions which form the suits lands with alleged fraud.
21. The 1st -12th Respondents’ submission that the history given above is clear of any fraud and that the respondents herein are all innocent purchasers for value.
Analysis and Determination
22. The Respondents raised objection to the application herein and the suit as a whole, stating that the suit offends the doctrine of res judicata. Section 7 of the Civil Procedure Act provides for the doctrine of res judicata and spells out the estoppel for determining the application of the said doctrine. The section states as follows:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
23.  In the case of Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court, while considering the above provision of the law, held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:
"(a) The suit or issue was directly and substantially in issue in the former suit.
(b) That former suit was between the same parties or parties under whom they or any of them claim.
(c) Those parties were litigating under the same title.
(d) The issue was heard and finally determined in the former suit.
(e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”
24. The land subject matter of the suit herein is L.R. Konyu/Baricho/2387. From the documents that the 1st -12th Respondents have attached to their Replying Affidavit, the present title was derived from the original mother title L.R Konyu/Baricho/154, which belonged to Jedidah Kabecha Mathenge(Deceased), the Applicant’s grandmother.
25. From the Green Cards exhibited by the 1st -12th Respondents, it appears that the suit land L.R Konyu/Baricho/2387 was a subdivision of L.R Konyu/Baricho/2340 and the title passed from Jedidah Kabecha Mathenge, the original owner to Simon Githinji Ndirangu on 3rd November 2011. It also appears that there was a restriction entered on 2nd August 2013 until the determination of Nyeri Civil Case No.95 of 2012. The restriction was later removed on 2nd April 2019 as per Nyeri ELC 323 of 2014. The 1st Defendant/Respondent later obtained the title through transmission vide Karatina PMCC 81 of 2019.
26. From the documents exhibited, one subdivision from the mother title Konyu/Baricho/154 known as LR Konyu/Baricho/2339 was transferred as a gift to the Plaintiff/Applicant herein, who was issued with the title deed on 9th June 1998.
27. There appears to have been a number of court cases related to the resultant subdivisions of the main land in dispute. However, it is noted that none of the parties attached the pleadings in the suits filed, save for the Judgment entered in Nyeri ELC 323 of 2014. The court notes that the parties in that suit were the Plaintiff herein versus Christopher Muchomba Warui and the Land Registrar of Nyeri. These parties are different from the parties in this suit. Further, the land subject matter of the previously decided suit was LR Nos. Konyu/Baricho/2341 and 2389, while the suit parcel of land subject matter of this suit is LR Nos. Konyu/Baricho/2387, which is a different parcel of land.
28. The Court finds that a comparison of this suit and the previously decided case shows that the cases do not pass the test of res judicata as provided under Section 7 of the Civil Procedure Act. The Court further finds that failure by the Respondent to attach pleadings in the previous suit makes it difficult for the court to apply the test of whether the matters in issue in the previously decided case are directly and substantially in issue in the present suit and were heard and finally decided by a court of competent jurisdiction. The court thus finds the preliminary objection to have no merit and the same is hereby dismissed.
29. Moving on to the substantive application where prayer 3 seeks an order of injunction over the suit property L.R Konyu/Baricho/2387 together with all resultant subdivisions thereto until further orders of this Court.
30. Order 40 Rule 1 of the Civil Procedure Rules provides for grant of temporary injunctions and states that;
Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) ….….
the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.
31. In the case of Giella vs Cassman Brown & Company Limited (1973) E A 358, the court expressed itself on the conditions that a party must satisfy for grant of an interlocutory injunction: -
"First, an 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 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."
32. The definition of a prima facie case was explained in the case that the Applicant cited; Mrao Ltd. –vs- First American Bank of Kenya Limited and 2 others (2003) eKLR, where the Court of Appeal expressed thus;
“In civil cases, a prima facie is 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. A prima facie case is more than an arguable case. It is not sufficient to raise issues, but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
33. In the case of Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others [2015] eKLR, the Court of Appeal detailed what a prima facie case with a probability of success means when it stated that:
“In Habib Bank Ag Zurich V. Eugene Marion Yakub, Ca No. 43 of 1982, this Court considered the role of the court when determining whether or not a prima facie case has been made out. The Court expressed itself thus:
“Probability of success means the court is only to gauge the strength of the Plaintiff's case and not to adjudge the main suit at this stage since proof is only required at the hearing stage.”
The same caution was repeated in NATIONAL BANK OF KENYA V. DUNCAN OWOUR SHAKALI & ANOTHER, CA NO. 9 of 1997, when Omolo JA stated:
“The question of finally deciding whether or not there is a contract between the parties and if there is, what terms ought to be implied in the contract, is not to be determined on affidavits. All a Judge has to decide at the stage of an interlocutory injunction is whether there is a prima facie case with a probability of success. A prima facie case with a probability of success does not, in my view, mean a case which must eventually succeed.”
34. The Applicant claims that transfer of Konyu/Baricho/2387 on 3rd November 2011 to one Simon Githinji Ndirangu, husband to the 1st Respondent, was fraudulent and as a result of a corrupt scheme, having regard to the fact that the registered proprietor of the land died on 23rd February 2001. Ashe claims that no succession proceedings have ever been initiated or concluded in respect of the estate of Jedida Kabecha Mathenge save for the limited grant issued to the Plaintiff vide Karatina Succession Cause No. 261 of 2023.
35. The Applicant thus claims that no valid title has been transferred to Simon Githinji Ndirangu capable of being transmitted to the Administrator of his estate. That all subsequent dealings with LR Konyu/Baricho/2387 or any resultant subdivisions are invalid and incapable of transferring good title.
36. The 1st Respondent, on the other hand, swore an affidavit and deposed that she is the wife of the late Simon Githinji Ndirangu. The said Simon Githinji is said to have purchased the suit property from the original owner, Jedidah Kabecha Mathenge, sometime in the year 1997. That they attended the Land Control Board and obtained consent, and the suit land was duly transferred to her late husband. The 1st Respondent does not state when the transfer was made to her husband. She further did not exhibit a copy of the transfer from.
37. The court has seen the limited grant of letters of administration issued to the applicant in Principal Magistrate's court at Karatina in succession cause No. 261 of 2023 in the estate of Jedida Kabecha Mathenge dated 11th October 2022. The grant confirms that the deceased died on 23rd February 2001. The court has also seen a copy of the extract of title to the suit parcel of land Konyu/Baricho/2387, which shows that the title deed to the land was initially registered in favour of the deceased Jedida Kabecha Mathenge and a title deed issued on 23rd May 1995. The register also shows that a title deed was issued to Simon Githinji Ndirangu on 3rd November 2011. The extract does not show that there was a transfer to Simon Githinji by way of transmission or in what form the transfer was made.
38. The court is persuaded that the applicant has made out a prima facie case with a probability of success.
39. The second criterion to be met for  issuance of an order of injunction is that the Applicant must show that she would suffer irreparable harm unless the order sought is granted. The court notes that the title to the suit land was subdivided as per the Green Card exhibited by the 1st -12th Respondents and the resultant subdivisions are now in the name of various defendants/respondents in this suit.
40. The Plaintiff/Applicant has shown that on 3rd November 2011, the suit property was transferred from the deceased’s name to Simon Githinji Ndirangu. On or about 10th February 2020, the land was transmitted to the 1st Defendant herein, through Karatina PM’s Succession Cause 81 of 2019.
41. On 30th September 2020, the 1st Defendant transferred the suit property to the 2nd defendant. On 11th December 2020, the 2nd Defendant subdivided the suit property into 25 parcels, being Konyu/Baricho/5162-5187, some of which he has now transferred to other defendants named herein.
42. In the Court’s view, the Plaintiff/Applicant stands to suffer irreparable harm if any further dealings on the subject land are allowed to take place. The number of transfers and subdivisions that have occurred on the suit land since the transfer to the 1st Respondent are indicative of the real danger of further dealings in the land unless the court intervenes
43.  From the foregoing, the court is persuaded that the Applicant is entitled to the order of injunction sought.
44. Prayer 4 of the application herein is an order inhibiting registration of any dealings relating to title No. Konyu/Baricho/5162- Konyu/Baricho/5187(being resultant subdivisions of L.R. Konyu/Baricho/2387) until the hearing and determination of this suit.
45. Section 68 of the Land Registration Act 2012 provides as follows:
(1) The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.
(2) A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register.
(3) An inhibition shall not bind or affect the land, lease or charge until it has been registered.
46. It was held by CK Yano J in the case of Karani v Muriithi (Civil Appeal 28 of 2022) [2024] KEHC 2575 (KLR) that:
“The order of inhibition is provided for under Section 68 (1) of the Land Registration Act. This section gives the court discretion to inhibit registered dealings on land for a particular time or until the occurrence of a particular event. As such, an inhibition order is an order which is in the nature of a prohibitory injunction restraining dealings on land pending further orders of the court. The purpose of the said order is to preserve the property in question from acts that would otherwise render a court order incapable of being executed, and or to give an opportunity to hear and decide the matter. In an application for orders of inhibition, in my understanding, the applicant has to satisfy the following conditions; that the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the applicant unless preservatory orders of inhibition are issued, that the refusal to grant orders of inhibition would render the applicant’s suit nugatory, and that the applicant has an arguable case.”
47. For the same reasons as have been given by the court for allowing the prayer for an injunction, the court is of the view that the prayer for an order of inhibition is merited.
48. The court thus allows the Notice of Motion application dated 31st of October 2023 in the following terms:
1. The defendants, by themselves, servants or agents, be restrained by way of temporary injunction from entering, disposing, building, charging or dealing in any manner whatsoever with title number KONYU/BARICHO/2387 together with all resultant subdivisions thereto until heating and final determination of this suit.
2. An order be and is hereby issued inhibiting registration of any dealings relating to title No. KONYU/BARICHO/5162- KONYU/BARICHO/5187(being resultant subdivisions of L.R. KONYU/BARICHO/2387) until the hearing and determination of this suit.
3. That costs of this application shall abide the final determination of the suit
Delivered, Dated and Signed at Nyeri this 1st day of August                         2025