REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM NO. E929 OF 2021
OCHE GAYO SOSO..……………….…................................................PLAINTIFF
-VERSUS-
KORE NASIRI JILLO……..…………….…………………….……DEFENDANT
RULING
1. Before me is a Notice of Motion application dated 27th December, 2021 brought pursuant to the provisions of Sections 1A, 1B, 3A & 63 of the Civil Procedure Act, Order 40 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. The plaintiff seeks the following orders -
(i) Spent;
(ii) That pending inter partes hearing and determination of this application and thereafter pending hearing and determination of this suit, this Honourable Court be pleased to issue an order of injunction restraining the defendant whether by himself, his employees, servants, agents or anyone claiming through him or on his behalf from doing the following or any of the following that is to say taking possession, appointing agents to lease, let or in any other manner deal with premises erected on Land Reference Number 36/11/267, offering or advertising for sale, selling, disposing, transferring, completing transfer or in any other manner dealing with parcel of land known as Land Reference Number 36/11/267;
(iii) That this Honourable Court be pleased to compel the defendant to produce the documents of title in relation to parcel of land namely Land Reference Number 36/11/267 including the statement of account and any encumbrance thereon; and
(iv) That costs of this application be borne by the defendant/respondent.
2. The application is premised on the grounds on the face of the Motion and is supported by affidavits sworn on 29th December, 2021 and 23rd May, 2022, by Oche Gayo Soso, the plaintiff herein. In opposition thereto, the defendant filed replying and supplementary affidavits sworn on 11th February, 2022 and 23rd June, 2022 by Kore Nasiri Jillo, the defendant herein, and one Sode Mohamed, respectively. The defendant also filed a Notice of Preliminary Objection dated 11th February, 2022 raising the following grounds–
i) That the Plaint and Notice of Motion application usurp the jurisdiction of the Environment and Land Court Act No. 19 of 2011 as it purports to hear and determine a dispute relating to land use, occupation and title of L.R. No. 36/11/267 by dint of Section 13(1) of the said Act as read together with the practice directions issued by the Chief Justice on 25th July, 2014; and
ii) That the rule in section 13 on primary jurisdiction is constitutionally underpinned by Article 162(2) of the Constitution. As a result, the defendant will request the Court to strike out the plaint and Notice of Motion application in limine.
3. The instant application and Notice of Preliminary Objection were canvassed by way of written submissions which were highlighted on 10th July, 2023. The applicant’s submissions were filed by the law firm of Nyandwaro Boyani Advocates on 2nd May, 2023, whereas the 1st respondent’s submissions were filed on 2nd May, 2023 by the law firm of Mohammed Muigai LLP. I note from the record that the 2nd respondent did not file any response in opposition to the instant application.
4. Mr. Kariuki, learned Counsel for the plaintiff referred to the provisions of Section 13(1) of the Environment and Land Court Act, Article 162(2) of the Constitution of Kenya, 2010 and the case of the Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and submitted that this Court has the requisite jurisdiction to hear and determine this matter as is discernible from the prayers sought in the plaint. He submitted that this Court is the right forum to determine the existence of the partnership, the breach of the terms thereof and damages for the said breach. He further submitted that the plaintiff’s suit against the defendant is that they got into an oral partnership agreement however prior to the commencement of the said partnership, they were carrying out business at Moyale and thereafter, they came together in the year 1997 and invested Kshs.1,300,000/= each. That they then purchased a lorry before investing in other assets including land.
5. It was stated by Counsel that the defendant breached the trust bestowed upon him by the plaintiff leading to the collapse of the said partnership. It was claimed that the defendant also took possession of the assets of the partnership including income generating assets. He further stated that the prayer for severance of the partnership assets can only be addressed after a determination of whether a partnership exists, has been made. He relied on the Partnership Act No. 16 of 2012 for definition of the word partnership and contended that the plaintiff has sufficiently demonstrated that there existed a relationship between the plaintiff and the defendant since they carried out business in common, with a view of making profit.
6. Mr. Kariuki relied on the decisions in Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another [2016] eKLR and Peter Mutisya Musembi & another v National Bank of Kenya Limited [2015] eKLR and stated that in case the issues raised in this suit fall within two jurisdictions, namely, this Court and the Environment and Land Court, that in itself should not be a basis for striking out of the suit, instead, the Pre-dominant Purpose Test should apply. It was submitted by Counsel that in this case, the pre-dominant purpose of coming together by the parties herein was engaging in business as partners for gain. He stated that they engaged in selling second hand clothes before moving to transport business and thereafter acquired motor vehicles and immovable properties. He submitted that in as much as a prayer for division of the partnership assets has been made, it is subsequent to the determination on the partnership.
7. Counsel relied on the case of Giella v Cassman Brown & Company Limited [1973] EA 358 and contended that the plaintiff has met the conditions for grant of the orders sought in the application herein, in that he has demonstrated that he entered into a partnership agreement with the defendant in 1997 but they did not open and operate a joint account. He stated that the defendant was primarily based in Nairobi and all the proceeds of the businesses carried out under the said partnership were deposited in his bank account. In submitting that the plaintiff has made out a prima facie case against the defendant, Mr. Kariuki relied on the case of Eunice Rahel Achieng v Co-operative Bank of Kenya [2022] eKLR.
8. He submitted that in bid to settle the dispute herein, the parties came together sometime in the year 2015 where it was agreed that the defendant would transfer all that property known as L.R. No. 36/11/267 to the plaintiff pending determination of the dispute between them. That the defendant then handed over possession of the said property to the plaintiff, who has been in possession since then. That on 22nd December, 2021 the defendant purported to introduce strangers to the premises erected on the said parcel of land by referring to the plaintiff as his former employee. Counsel submitted that unless the defendant is restrained by an order of this Court, he will take possession of the said premises despite the fact that the plaintiff has a stake therein, thereby causing him to suffer irreparable loss which cannot be compensated by an award of damages. Counsel added that the defendant cannot be allowed to breach the partnership agreement he has with the plaintiff simply because he is in a position to compensate the plaintiff in damages.
9. Mr. Kariuki asserted that the balance of convenience tilts in favour of the plaintiff. He submitted that the defendant took out a banking facility of Kshs.35,000,000/= secured by the suit property without the plaintiff’s knowledge and/or involvement, and as such, the plaintiff is entitled to a record of all the documents relating to title No. 36/11/267 including an up to date statement of account showing the outstanding balance.
10. Mr. Ochieng, learned Counsel for the defendant cited the provisions of Article 162 and 165(5) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act and submitted that from the plaintiff’s pleadings, the issue arising in the dispute between them is on the use, title to, and occupation of L.R. No. 36/11/267, thus the Environment and Land Court has the requisite jurisdiction to issue preservatory orders in this case. He further submitted that the orders sought by the plaintiff is an interference with the defendant’s rights of ownership since the plaintiff has not disclosed or established any right or interest that he might have in the suit parcel of land. For this reason, he argued that the plaintiff lacks the requisite locus standi to bring this case against the defendant.
11. He referred to the case of Nairobi Permanent Markets Society & 11 others v Salima Enterprises & 2 others [1997] eKLR and contended that the defendant is the absolute and indefeasible owner of the suit parcel of land in issue and his title is not subject to challenge except on the ground of fraud or misrepresentation to which he is proved to be a party to, which is not the case herein. He contended that the defendant’s right of ownership of the suit property cannot be interfered with by the plaintiff, and in any event, the plaintiff had not disclosed any legal right or interest that he enjoys that has been prejudiced by the defendant’s ownership rights.
12. Counsel cited the provisions of Order 2 Rule 6(1) of the Civil Procedure Rules, 2010 and contended that the instant application is fatally defective as the prayers sought herein are inconsistent with the prayers sought in the plaint. He relied on the decisions in Kihara v Barclays Bank Limited [2001] 2EA 420, Morris and Company Limited v Kenya Commercial Bank Limited & others [2003] 2 EA 605 and David Waruiru Ngotho v Betty Abonyo Oyugi & 10 others [2011] eKLR. He asserted that failure to anchor the interim reliefs sought in the application herein on the plaint disentitles the plaintiff of the said reliefs. It was stated by Mr. Ochieng that the suit property is not in danger of being wasted, damaged, alienated or wrongfully sold in execution of any decree and it is not threatened by its removal to obstruct an intended decree.
13. From the foregoing, Counsel submitted that the plaintiff has not met the conditions for interim and interlocutory injunctions set out in the case of Giella v Cassman Brown & Company Limited (supra) and Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, hence the application herein should be dismissed. Further, he stated that in the absence of jurisdiction, this Court cannot be invited to exercise its discretion. Mr. Ochieng stated that the above notwithstanding, the plaintiff has not demonstrated a case for this Court to exercise its discretion for the grant of the orders sought in the instant application.
14. In a rejoinder, Mr. Kariuki submitted that there is performance on the part of the plaintiff as he remits a certain amount of money to the defendant as is evident at paragraph 16 of the plaint. He further submitted that prayer No. (e) of the plaint seeks preservation of all the properties acquired during the lifetime of the partnership.
ANALYSIS AND DETERMINATION.
15. I have considered the instant application, the grounds on the face of it, and the affidavits filed in support thereof by the plaintiff. I have also considered the replying and supplementary affidavits by the defendant, and the Notice of Preliminary Objection together with the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether this Court has the requisite jurisdiction to determine the dispute between the parties herein;
ii) Whether the application herein is fatally defective in light of the provisions of Order 2 Rule 6(1) of the Civil Procedure Rules, 2010;
iii) Whether the plaintiff has met the conditions to warrant grant of an interlocutory injunction against the defendant; and
iv) Whether the defendant should be compelled to produce the documents of title in relation to parcel of land namely L.R. No. 36/11/267 including the statement of account and any encumbrance thereon.
16. In the affidavit filed by the plaintiff he deposed that in a meeting held sometime in the year 2015, the defendant surrendered the premises erected on all that parcel of land known as L.R. No. 36/11/267 to him and demanded that he surrenders Kshs. 632,000/= to him monthly to settle an undisclosed loan with an undisclosed financial institution.
17. He averred that he protested to the said demand but still complied by remitting the said amount to the defendant through his personal bank account. He further averred that on 22nd December, 2021, the defendant purported to introduce strangers to the premises erected on all that parcel of land known as L.R. No. 36/11/267 and purported to engage them as his estate agents which action he successfully stopped.
18. He stated that he is aware that the defendant intends to take possession of the said premises thus depriving him of his only source of income, yet he has toiled since the year 1997 to build his partnership with the defendant, which the defendant intends to convert to his sole proprietorship.
19. The plaintiff averred that the defendant’s action is likely to interfere with the tenancy agreements between him and the tenants occupying the premises erected on the suit premises, thus creating an environment that is not conducive for their peaceful and quiet enjoyment of the said premises.
20. The defendant in his replying affidavit deposed that his interactions with the plaintiff have been business related in view of the fact that they are both from Marsabit County. He stated that the plaintiff ordered for goods from him and he would give him credit terms and proceeds would be remitted to him after sales.
21. He averred that the plaintiff has not pleaded with precision his contribution, a fact which must be ascertained at the earliest stage possible. He further averred that he has never held any properties in trust for the plaintiff nor sought any loan or capital from him to acquire any property.
22. The defendant contended that the plaintiff has not annexed to his affidavit in support of the instant application any bank statement or remittance that he sent to him to warrant the plaintiff’s claim on his properties. In addition, the plaintiff has failed to show by way of evidence when the alleged partnership between the parties herein commenced and when it broke down for any declarations to be issued.
23. It was stated by the defendant that the plaintiff has not demonstrated his contribution towards acquisition and/or development of the assets he wants this Court to divide between them. He further stated that the properties the plaintiff wants partitioned have been acquired mostly through borrowing thus the said properties will be distressed by financial institutions which advanced him money to the tune of Kshs. 250,000,000/=. He contended that the orders sought herein are capable of straining the defendant’s relationship with his financiers.
24. The defendant deposed that if at all the plaintiff is compos mentis, he could not have agreed that vehicles and the immovable assets be bought in the defendant’s name, run and operated exclusively by him. He contended that fraud or misrepresentation have not been pleaded nor can trust be expressed or implied.
25. The defendant averred that he acquired in his capacity as an individual, and not jointly with the plaintiff, all that parcel of land Known as L.R. No. 36/11/267 on or about the year 2003 and not 2004 as alleged by the plaintiff. The defendant asserted that he is the registered proprietor of the said property to date. He further averred that a Certificate of Title issued to a purchaser of land shall be taken by all Courts as conclusive evidence that the person named in it is the proprietor and is the absolute and indefeasible owner of it, subject to encumbrances, easements, restrictions and conditions contained in it or endorsed on it.
26. It was stated by the defendant that he engaged the plaintiff to collect rent in L.R. No. 36/11/267 and from the rent, he was to remit payments of Kshs. 632,000/= monthly to ABC Bank Limited since the property is charged for the sum of Kshs. 35,000,000/=. He further stated that the contents of paragraph 9 of the plaintiff’s supporting affidavit are lacking in legal foundation, as the plaintiff who claims to be his partner has not disclosed what assets he is in possession of, if indeed they had a partnership in Moyale.
27. The defendant denied introducing strangers to all that property known as L.R. No. 36/11/267. He averred that the plaintiff is in possession of the said property with his permission. The defendant further averred that the plaintiff has not offered any security as an undertaking as to damages as a condition for grant of the orders sought.
28. The plaintiff in his supplementary affidavit deposed that the gist of this suit is breach of an oral partnership agreement between him and the defendant, thus this is the right forum to determine the existence of the said partnership agreement, the breach thereof, the need to account for the assets held and disposed of without his knowledge and consent, and the orders sought in relation to partition of the assets. He averred that he has been paying the land rates and land rent for all that property known as L.R No. 36/11/267 as its beneficial owner before the resolution of all the matters in relation to their partnership.
29. He further averred that he had a working relationship with the defendant in the partnership in which he was mainly involved in the running and management of the transport business. He stated that some of the contracts secured by the partnership were a contract with Kenya National Trading Corporation Limited to transport goods to Coral Bay Limited in Ethiopia sometime in the year 2007, a contract with plastic products company limited to transport goods to Crane Plc, Ethiopia and a contract with Athi River Mining Limited to transport goods to Coral Bay Limited, Ethiopia. In addition, he stated that their joint venture also enabled them to buy matatus which were plying the Nairobi-Githurai route.
30. It was stated by the plaintiff that he was also involved and indeed settled claims for persons whose members of their households lost their lives in an accident involving their motor vehicle registration No. KAM 906Z at Moyale sometime in January 2002 as evidenced by the documents attached to his supplementary affidavit, in which he was referred to as Abraham Soso of Manyatta Burji and the owner of lorry registration No. KAM 906Z.
31. He further stated that it never occurred to him that the defendant would turn against him and claim that all the assets registered in his name were as a result of his hard work. He deposed that he trusted that the defendant would acknowledge his contribution in the partnership and ensure equal distribution of the assets acquired during the pendency of the partnership and that is why it never bothered him in having the properties registered in the name of the defendant.
32. He further stated that it was convenient to have the properties registered in the name of the defendant since he was in Nairobi most of the time, whereas he was based in Moyale. As a result, most of the documents in relation to the partnership were prepared in the defendant’s name.
33. The plaintiff asserted that the defendant was in charge of supervision of projects in Nairobi, while he was in charge of the transport business and remitting the proceeds into bank accounts opened and operated in the name of the defendant. He averred that it is evident from the defendant’s replying affidavit that his intentions have always been to take his share in the partnership which intention should not be tolerated and/or accepted by this Court.
34. In the defendant’s replying affidavit sworn by Sode Mohamed he deposed that he knows the plaintiff and the defendant since they all come from Marsabit. He averred that the plaintiff has been an employee of the defendant for the last 25 years and that the defendant would supply them with goods in Marsabit, they would sell and remit the proceeds of the sale into his bank account.
35. The defendant in his supplementary affidavit deposed that he would buy goods in wholesale, such as juice and other commodities in Nairobi, and send them to Moyale where the plaintiff and other business people were engaged in selling them and after making a small profit, they would deposit the principal amount for the goods in his account.
36. He averred that the deposits shared by the plaintiff began in 2007 when he was buying fast moving consumer goods like mattresses and flour from him. He further averred that he got into a contract with Athi River Mining Limited to transport goods to Moyale and they would pay him with cheques in his own name.
37. It was stated by the defendant that goods from KNTC, Crane PLC in Ethiopia, Athi River Mining and Coral Bay Limited, in Ethiopia were all sourced from Nairobi and then goods would be consigned to Moyale and thereafter, they would pay him in cash or deposit dollars in his USD account. He further stated that the plaintiff has not tendered any evidence to prove that he is the same Abraham Soso referred to in paragraph 16 of his supplementary affidavit.
38. The defendant deposed that the monies paid into his various bank accounts by the plaintiff were for goods supplied and transportation costs thus they cannot be interpreted as evidence of a partnership business. On analyzing the KCB bank slips, the defendant contended that the plaintiff sent him a total of Kshs.12,844,350.00, yet he is seeking this Court to award him a 50% share of the defendant’s properties, assets and earnings.
39. The defendant averred that some of the claims made by the plaintiff go as far back as over fifteen (15) years ago, and as such, they are barred by limitation of time. He further averred that if at all there was any element of fraud, the plaintiff would have reported him to the relevant authorities for obtaining money by false pretences.
Whether this Court has the requisite jurisdiction to determine the dispute between the parties herein.
40. It is trite that in any litigation jurisdiction is central and Courts of law cannot validly take any step without it. The locus classicus on jurisdiction is the case of the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Nyarangi. J, held that jurisdiction is everything and without it, a Court of law must down its tools in respect of the matter before it. Further, the Supreme Court of Kenya stated in the case of Samuel Kamau Macharia v KCB and others [2012] eKLR that -
“A Court’s jurisdiction flows from either the Constitution or Legislation or both. Thus, a Court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law………the Court must operate within the constitutional limits. It cannot expand jurisdiction through judicial craft or innovation.”
41. From the pleadings in this case, it is evident that the plaintiff’s claim is founded on an alleged oral partnership agreement. His case is that he got into a partnership agreement with the defendant sometime in the year 1997 and as a result of the said partnership, they acquired several movable and immovable properties including all that parcel of land known as L.R. No. 36/11/267. He averred that the said partnership has since broken down and the defendant has taken ownership of all the assets purchased in the partnership to his exclusion. It was stated by the plaintiff and that sometime in the year 2015, in a bid to settle the dispute between him and the defendant, it was agreed by the parties herein that the defendant would transfer ownership of all that parcel of land known as L.R. No. 36/11/267 to the plaintiff and the latter would take possession of the said parcel of land immediately.
42. The plaintiff contended that the defendant has never effected the said transfer but instead, on 22nd December, 2021, he purported to introduce strangers to the premises erected on the said parcel of land and to engage them as his estate agents. The plaintiff now wants this Court to issue an injunction order against the defendant and/or any other person claiming under him restraining him from taking possession, appointing agents to lease, let or in any other manner deal with premises erected on Land Reference Number 36/11/267 pending the hearing and determination of the suit. In the main suit, the plaintiff seeks an order for division of the assets purchased during the pendency of the partnership agreement between the plaintiff and the defendant which includes the aforementioned parcel of land.
43. The defendant has challenged the instant application on grounds of jurisdiction. He submitted that the plaintiff’s application touches on issues related to use, occupation and ownership of land which is the preserve of the Environment and Land Court pursuant to the provisions of Section 13 of the Environment and Land Court Act and Article 162 of the Constitution of Kenya, 2010. Pursuant to the provisions of Article 165(5) of the Constitution of Kenya, 2010, the High Court does not have jurisdiction in respect of matters falling within the jurisdiction of the Courts contemplated under Article 162(2) of the Constitution, which include the Environment and Land Court and the Employment and Labour Relations Court.
44. It is trite that the Environment and Land Court has original and appellate jurisdiction to hear and determine all disputes relating to the environment, the use and occupation of, and title to land pursuant to the provisions of Section 13 of the Environment and Land Court Act. The above notwithstanding, Courts have on several occasions held that when faced with a controversy on whether a particular case being a land related dispute should be litigated at the Environment and Land Court or not as is the case herein, the Courts utilize the Pre-dominant Purpose Test. The Court in the case of Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another (supra) when faced with a similar controversy held the following-
“In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works.
The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse.”
45. The plaintiff’s suit is anchored on an alleged oral partnership agreement between him and the defendant allegedly entered into in the year 1997. The plaintiff averred that during the pendency of the said partnership, they purchased several movable and immovable assets including all that parcel of land known as L.R. No. 36/11/267 which is the subject of this application. The plaintiff now claims he is entitled to a half share of the same. It is not disputed that in the main suit, the plaintiff seeks judgment against the defendant inter alia for a declaration that the partnership between the parties herein has broken down, that the plaintiff is entitled to half of all the assets to the partnership and a permanent injunction restraining the defendant or any other person claiming under him from selling. alienating, transferring, charging or parting with possession of the assets acquired during the pendency of the partnership between the plaintiff and the defendant.
46. In light of the foregoing, it is my finding that the primary dispute between the parties herein is on whether there exists a partnership agreement between them, whether assets were bought as a result and/or during the pendency of the said partnership, and whether the plaintiff is entitled to a half share of the said assets. The parcel of land that is the subject to the application herein is alleged to have been bought during the pendency of the said partnership thus the plaintiff wants the defendant restrained from disposing and/or alienating it, pending the outcome of the main suit. Consequently, it is my finding that the dispute herein does not primarily fall within the confines of Section 13 of the Environment and Land Act and Article 162 of the Constitution of Kenya, 2010 since the cause of action is predominantly as a result of an alleged partnership agreement. For this reason, I hold that this Court has jurisdiction to hear and determine the instant application. In the result, the defendant’s Notice of Preliminary Objection is not merited and it is hereby dismissed, with costs to the plaintiff.
Whether the application herein is fatally defective in light of the provisions of Order 2 Rule 6(1) of the Civil Procedure Rules, 2010.
47. Counsel for the defendant cited the provisions of Order 2 Rule 6(1) of the Civil Procedure Rules, 2010 and submitted that the instant application is fatally defective as the prayers sought are inconsistent with the prayers sought in the plaint. The instant application seeks an order for injunction restraining the defendant or any other person claiming under him from taking possession, appointing agents to lease, let or in any other manner deal with premises erected on Land Reference Number 36/11/267 pending the hearing and determination of this suit and for the defendant to be compelled to produce the documents of title in relation to parcel of land namely L.R. No. 36/11/267 including the statement of account and any encumbrance thereon.
48. Looking at the prayers sought by the plaintiff in his plaint, it is evident that prayer (e) seeks an order for permanent injunction restraining the defendant or any other person claiming under him from selling, alienating, transferring, charging or parting with possession of the assets acquired during the pendency of the partnership between the plaintiff and the defendant. The plaintiff’s contention is that the said parcel of land was purchased by the defendant and himself during the pendency of their partnership agreement thus it forms part of the assets acquired during the pendency of the said partnership. Accordingly, it is my finding that the prayers sought in the instant application are not inconsistent with the prayers sought in the plaint, thus the instant application is not fatally defective.
Whether the plaintiff has met the conditions to warrant grant of an interlocutory injunction against the defendant.
49. Temporary injunctions are provided for under Order 40 Rule 1 of the Civil Procedure Rules, 2010, which 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) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
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."
50. It is trite that in an application for an interlocutory injunction, the onus is on the applicant to satisfy the Court that it should grant such an order. The test for granting of an interlocutory injunction was considered in the case of American Cyanamid Co. v Ethicom Limited [1975] A AER 504 where three elements were noted to be of great importance namely:
i) There must be a serious/fair issue to be tried;
ii) Damages are not an adequate remedy, and
iii) The balance of convenience lies in favour of granting or refusing the application.
51. The Court of appeal in the case of Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others [2003] eKLR, considered what constitutes a prima case and held that -
“So what is a prima facie case" I would say that in civil cases it 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.”
52. The plaintiff’s case is that all that parcel of land known as L.R. No. 36/11/267 was purchased during the pendency of a partnership agreement between the defendant and himself entered into sometime in the year 1997. He averred that sometime in the year 2015 in a bid to settle the dispute between the parties herein, he and the defendant agreed that the defendant would transfer ownership of all that parcel of land known as L.R. No. 36/11/267 to the plaintiff and the plaintiff would take possession of the said parcel of land immediately. However, the defendant never effected the said transfer but instead, on 22nd December, 2021, he purported to introduce strangers to the premises erected on the said parcel of land and purported to engage them as his estate agents.
53. The plaintiff therefore urges this Court to issue an injunction order against the defendant and/or any other person claiming under him restraining him from taking possession, appointing agents to lease, let or in any other manner deal with premises erected on Land Reference Number 36/11/267 so as to preserve it pending determination of the dispute between the parties herein.
54. The defendant in his replying affidavit averred that he is the absolute and indefeasible owner of all that parcel of land known as L.R. No. 36/11/267, therefore his right of ownership of the said property cannot be interfered with by the plaintiff. He further averred that the plaintiff has not disclosed any legal right or interest that he enjoys that has been prejudiced by the defendant’s ownership rights to warrant grant of the orders sought herein.
55. It is trite that pursuant to the provisions of Sections 107 & 109 of the Evidence Act, Cap 80 Laws of Kenya, he who alleges must prove. The plaintiff has not tendered any documentation in form of a land sale agreement between himself and the defendant and the previous owner of L.R. No. 36/11/267 to establish that there was an agreement in writing by the plaintiff and the defendant to the effect that the defendant would purchase the said parcel of land on their behalf. The plaintiff did not provide proof of monetary contribution towards purchase of the said parcel of land, in support of the allegation that L.R. No. 36/11/267 was bought as a result of a the partnership agreement between him and the defendant for their benefit as partners, thus he is entitled to half of it.
56. The defendant on the other hand annexed to his replying affidavit as annexure No. KNJ (e) a copy of an agreement for sale for plot No. 267 of Section II Eastleigh Nairobi dated 15th October, 2003 and conveyance of plot No. 267 of Section II Eastleigh, Nairobi dated 30th December, 2003 both between the defendant as the purchaser, and Wairimu Kinyanjui as the vendor in support of the averment that he is the absolute and indefeasible owner of all that parcel of land known as L.R. No. 36/11/267 and that he bought the said parcel of land in his capacity as an individual and not jointly with the plaintiff.
57. I am of the considered view that for the plaintiff to successfully demonstrate that he has a prima facie case against the defendant with a probability of success in respect to parcel of land L.R. No. 36/11/267, he has to establish that he has a justifiable legal right or interest in the said parcel of land. As explained hereinabove, the plaintiff has not tendered any evidence to that effect. In the absence of proof of ownership, co-ownership or any justifiable legal right or interest in the subject parcel of land, this Court finds that the plaintiff has not discharged his burden of establishing a prima facie case against the defendant with a probability of success.
58. On whether the plaintiff stands to suffer irreparable injury that cannot be adequately compensated by an award of damages in the event the instant application is not allowed, I am of the view that this is not the case. This is because the subject matter in question is a parcel of land whose value can be ascertained through valuation thus the plaintiff can be adequately compensated by an award in damages in the event this suit is determined in his favour.
59. My finding is that the balance of convenience tilts in favour of the defendant since the plaintiff has not established a prima facie case against the defendant with a probability of success.
Whether the defendant should be compelled to produce the documents of title in relation to parcel of land namely L.R. No. 36/11/267 including the statement of account and any encumbrance thereon.
60. The plaintiff having failed to prove and/or demonstrate that he owns, co-owns and/or he has any justifiable legal right or interest in all that parcel of land known as L.R. No. 36/11/267, this Court cannot compel the defendant who has demonstrated on a balance of probability that he is the absolute and indefeasible owner of the said parcel of land to produce the documents of title in relation to it including the statement of account and any encumbrance thereon as this will amount to interfering with the defendant’s rights to property enshrined under Article 40 of the Constitution of Kenya, 2010.
61. The upshot is that the application dated 27th December, 2021 is bereft of merit it is hereby dismissed with costs to the defendant.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 8th day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
No appearance for the plaintiff
Mr. Ochieng for the defendant
Ms. B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM NO. E929 OF 2021
OCHE GAYO SOSO..……………….…................................................PLAINTIFF
-VERSUS-
KORE NASIRI JILLO……..…………….…………………….……DEFENDANT
RULING
1. Before me is a Notice of Motion application dated 27th December, 2021 brought pursuant to the provisions of Sections 1A, 1B, 3A & 63 of the Civil Procedure Act, Order 40 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. The plaintiff seeks the following orders -
(i) Spent;
(ii) That pending inter partes hearing and determination of this application and thereafter pending hearing and determination of this suit, this Honourable Court be pleased to issue an order of injunction restraining the defendant whether by himself, his employees, servants, agents or anyone claiming through him or on his behalf from doing the following or any of the following that is to say taking possession, appointing agents to lease, let or in any other manner deal with premises erected on Land Reference Number 36/11/267, offering or advertising for sale, selling, disposing, transferring, completing transfer or in any other manner dealing with parcel of land known as Land Reference Number 36/11/267;
(iii) That this Honourable Court be pleased to compel the defendant to produce the documents of title in relation to parcel of land namely Land Reference Number 36/11/267 including the statement of account and any encumbrance thereon; and
(iv) That costs of this application be borne by the defendant/respondent.
2. The application is premised on the grounds on the face of the Motion and is supported by affidavits sworn on 29th December, 2021 and 23rd May, 2022, by Oche Gayo Soso, the plaintiff herein. In opposition thereto, the defendant filed replying and supplementary affidavits sworn on 11th February, 2022 and 23rd June, 2022 by Kore Nasiri Jillo, the defendant herein, and one Sode Mohamed, respectively. The defendant also filed a Notice of Preliminary Objection dated 11th February, 2022 raising the following grounds–
i) That the Plaint and Notice of Motion application usurp the jurisdiction of the Environment and Land Court Act No. 19 of 2011 as it purports to hear and determine a dispute relating to land use, occupation and title of L.R. No. 36/11/267 by dint of Section 13(1) of the said Act as read together with the practice directions issued by the Chief Justice on 25th July, 2014; and
ii) That the rule in section 13 on primary jurisdiction is constitutionally underpinned by Article 162(2) of the Constitution. As a result, the defendant will request the Court to strike out the plaint and Notice of Motion application in limine.
3. The instant application and Notice of Preliminary Objection were canvassed by way of written submissions which were highlighted on 10th July, 2023. The applicant’s submissions were filed by the law firm of Nyandwaro Boyani Advocates on 2nd May, 2023, whereas the 1st respondent’s submissions were filed on 2nd May, 2023 by the law firm of Mohammed Muigai LLP. I note from the record that the 2nd respondent did not file any response in opposition to the instant application.
4. Mr. Kariuki, learned Counsel for the plaintiff referred to the provisions of Section 13(1) of the Environment and Land Court Act, Article 162(2) of the Constitution of Kenya, 2010 and the case of the Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and submitted that this Court has the requisite jurisdiction to hear and determine this matter as is discernible from the prayers sought in the plaint. He submitted that this Court is the right forum to determine the existence of the partnership, the breach of the terms thereof and damages for the said breach. He further submitted that the plaintiff’s suit against the defendant is that they got into an oral partnership agreement however prior to the commencement of the said partnership, they were carrying out business at Moyale and thereafter, they came together in the year 1997 and invested Kshs.1,300,000/= each. That they then purchased a lorry before investing in other assets including land.
5. It was stated by Counsel that the defendant breached the trust bestowed upon him by the plaintiff leading to the collapse of the said partnership. It was claimed that the defendant also took possession of the assets of the partnership including income generating assets. He further stated that the prayer for severance of the partnership assets can only be addressed after a determination of whether a partnership exists, has been made. He relied on the Partnership Act No. 16 of 2012 for definition of the word partnership and contended that the plaintiff has sufficiently demonstrated that there existed a relationship between the plaintiff and the defendant since they carried out business in common, with a view of making profit.
6. Mr. Kariuki relied on the decisions in Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another [2016] eKLR and Peter Mutisya Musembi & another v National Bank of Kenya Limited [2015] eKLR and stated that in case the issues raised in this suit fall within two jurisdictions, namely, this Court and the Environment and Land Court, that in itself should not be a basis for striking out of the suit, instead, the Pre-dominant Purpose Test should apply. It was submitted by Counsel that in this case, the pre-dominant purpose of coming together by the parties herein was engaging in business as partners for gain. He stated that they engaged in selling second hand clothes before moving to transport business and thereafter acquired motor vehicles and immovable properties. He submitted that in as much as a prayer for division of the partnership assets has been made, it is subsequent to the determination on the partnership.
7. Counsel relied on the case of Giella v Cassman Brown & Company Limited [1973] EA 358 and contended that the plaintiff has met the conditions for grant of the orders sought in the application herein, in that he has demonstrated that he entered into a partnership agreement with the defendant in 1997 but they did not open and operate a joint account. He stated that the defendant was primarily based in Nairobi and all the proceeds of the businesses carried out under the said partnership were deposited in his bank account. In submitting that the plaintiff has made out a prima facie case against the defendant, Mr. Kariuki relied on the case of Eunice Rahel Achieng v Co-operative Bank of Kenya [2022] eKLR.
8. He submitted that in bid to settle the dispute herein, the parties came together sometime in the year 2015 where it was agreed that the defendant would transfer all that property known as L.R. No. 36/11/267 to the plaintiff pending determination of the dispute between them. That the defendant then handed over possession of the said property to the plaintiff, who has been in possession since then. That on 22nd December, 2021 the defendant purported to introduce strangers to the premises erected on the said parcel of land by referring to the plaintiff as his former employee. Counsel submitted that unless the defendant is restrained by an order of this Court, he will take possession of the said premises despite the fact that the plaintiff has a stake therein, thereby causing him to suffer irreparable loss which cannot be compensated by an award of damages. Counsel added that the defendant cannot be allowed to breach the partnership agreement he has with the plaintiff simply because he is in a position to compensate the plaintiff in damages.
9. Mr. Kariuki asserted that the balance of convenience tilts in favour of the plaintiff. He submitted that the defendant took out a banking facility of Kshs.35,000,000/= secured by the suit property without the plaintiff’s knowledge and/or involvement, and as such, the plaintiff is entitled to a record of all the documents relating to title No. 36/11/267 including an up to date statement of account showing the outstanding balance.
10. Mr. Ochieng, learned Counsel for the defendant cited the provisions of Article 162 and 165(5) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act and submitted that from the plaintiff’s pleadings, the issue arising in the dispute between them is on the use, title to, and occupation of L.R. No. 36/11/267, thus the Environment and Land Court has the requisite jurisdiction to issue preservatory orders in this case. He further submitted that the orders sought by the plaintiff is an interference with the defendant’s rights of ownership since the plaintiff has not disclosed or established any right or interest that he might have in the suit parcel of land. For this reason, he argued that the plaintiff lacks the requisite locus standi to bring this case against the defendant.
11. He referred to the case of Nairobi Permanent Markets Society & 11 others v Salima Enterprises & 2 others [1997] eKLR and contended that the defendant is the absolute and indefeasible owner of the suit parcel of land in issue and his title is not subject to challenge except on the ground of fraud or misrepresentation to which he is proved to be a party to, which is not the case herein. He contended that the defendant’s right of ownership of the suit property cannot be interfered with by the plaintiff, and in any event, the plaintiff had not disclosed any legal right or interest that he enjoys that has been prejudiced by the defendant’s ownership rights.
12. Counsel cited the provisions of Order 2 Rule 6(1) of the Civil Procedure Rules, 2010 and contended that the instant application is fatally defective as the prayers sought herein are inconsistent with the prayers sought in the plaint. He relied on the decisions in Kihara v Barclays Bank Limited [2001] 2EA 420, Morris and Company Limited v Kenya Commercial Bank Limited & others [2003] 2 EA 605 and David Waruiru Ngotho v Betty Abonyo Oyugi & 10 others [2011] eKLR. He asserted that failure to anchor the interim reliefs sought in the application herein on the plaint disentitles the plaintiff of the said reliefs. It was stated by Mr. Ochieng that the suit property is not in danger of being wasted, damaged, alienated or wrongfully sold in execution of any decree and it is not threatened by its removal to obstruct an intended decree.
13. From the foregoing, Counsel submitted that the plaintiff has not met the conditions for interim and interlocutory injunctions set out in the case of Giella v Cassman Brown & Company Limited (supra) and Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, hence the application herein should be dismissed. Further, he stated that in the absence of jurisdiction, this Court cannot be invited to exercise its discretion. Mr. Ochieng stated that the above notwithstanding, the plaintiff has not demonstrated a case for this Court to exercise its discretion for the grant of the orders sought in the instant application.
14. In a rejoinder, Mr. Kariuki submitted that there is performance on the part of the plaintiff as he remits a certain amount of money to the defendant as is evident at paragraph 16 of the plaint. He further submitted that prayer No. (e) of the plaint seeks preservation of all the properties acquired during the lifetime of the partnership.
ANALYSIS AND DETERMINATION.
15. I have considered the instant application, the grounds on the face of it, and the affidavits filed in support thereof by the plaintiff. I have also considered the replying and supplementary affidavits by the defendant, and the Notice of Preliminary Objection together with the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether this Court has the requisite jurisdiction to determine the dispute between the parties herein;
ii) Whether the application herein is fatally defective in light of the provisions of Order 2 Rule 6(1) of the Civil Procedure Rules, 2010;
iii) Whether the plaintiff has met the conditions to warrant grant of an interlocutory injunction against the defendant; and
iv) Whether the defendant should be compelled to produce the documents of title in relation to parcel of land namely L.R. No. 36/11/267 including the statement of account and any encumbrance thereon.
16. In the affidavit filed by the plaintiff he deposed that in a meeting held sometime in the year 2015, the defendant surrendered the premises erected on all that parcel of land known as L.R. No. 36/11/267 to him and demanded that he surrenders Kshs. 632,000/= to him monthly to settle an undisclosed loan with an undisclosed financial institution.
17. He averred that he protested to the said demand but still complied by remitting the said amount to the defendant through his personal bank account. He further averred that on 22nd December, 2021, the defendant purported to introduce strangers to the premises erected on all that parcel of land known as L.R. No. 36/11/267 and purported to engage them as his estate agents which action he successfully stopped.
18. He stated that he is aware that the defendant intends to take possession of the said premises thus depriving him of his only source of income, yet he has toiled since the year 1997 to build his partnership with the defendant, which the defendant intends to convert to his sole proprietorship.
19. The plaintiff averred that the defendant’s action is likely to interfere with the tenancy agreements between him and the tenants occupying the premises erected on the suit premises, thus creating an environment that is not conducive for their peaceful and quiet enjoyment of the said premises.
20. The defendant in his replying affidavit deposed that his interactions with the plaintiff have been business related in view of the fact that they are both from Marsabit County. He stated that the plaintiff ordered for goods from him and he would give him credit terms and proceeds would be remitted to him after sales.
21. He averred that the plaintiff has not pleaded with precision his contribution, a fact which must be ascertained at the earliest stage possible. He further averred that he has never held any properties in trust for the plaintiff nor sought any loan or capital from him to acquire any property.
22. The defendant contended that the plaintiff has not annexed to his affidavit in support of the instant application any bank statement or remittance that he sent to him to warrant the plaintiff’s claim on his properties. In addition, the plaintiff has failed to show by way of evidence when the alleged partnership between the parties herein commenced and when it broke down for any declarations to be issued.
23. It was stated by the defendant that the plaintiff has not demonstrated his contribution towards acquisition and/or development of the assets he wants this Court to divide between them. He further stated that the properties the plaintiff wants partitioned have been acquired mostly through borrowing thus the said properties will be distressed by financial institutions which advanced him money to the tune of Kshs. 250,000,000/=. He contended that the orders sought herein are capable of straining the defendant’s relationship with his financiers.
24. The defendant deposed that if at all the plaintiff is compos mentis, he could not have agreed that vehicles and the immovable assets be bought in the defendant’s name, run and operated exclusively by him. He contended that fraud or misrepresentation have not been pleaded nor can trust be expressed or implied.
25. The defendant averred that he acquired in his capacity as an individual, and not jointly with the plaintiff, all that parcel of land Known as L.R. No. 36/11/267 on or about the year 2003 and not 2004 as alleged by the plaintiff. The defendant asserted that he is the registered proprietor of the said property to date. He further averred that a Certificate of Title issued to a purchaser of land shall be taken by all Courts as conclusive evidence that the person named in it is the proprietor and is the absolute and indefeasible owner of it, subject to encumbrances, easements, restrictions and conditions contained in it or endorsed on it.
26. It was stated by the defendant that he engaged the plaintiff to collect rent in L.R. No. 36/11/267 and from the rent, he was to remit payments of Kshs. 632,000/= monthly to ABC Bank Limited since the property is charged for the sum of Kshs. 35,000,000/=. He further stated that the contents of paragraph 9 of the plaintiff’s supporting affidavit are lacking in legal foundation, as the plaintiff who claims to be his partner has not disclosed what assets he is in possession of, if indeed they had a partnership in Moyale.
27. The defendant denied introducing strangers to all that property known as L.R. No. 36/11/267. He averred that the plaintiff is in possession of the said property with his permission. The defendant further averred that the plaintiff has not offered any security as an undertaking as to damages as a condition for grant of the orders sought.
28. The plaintiff in his supplementary affidavit deposed that the gist of this suit is breach of an oral partnership agreement between him and the defendant, thus this is the right forum to determine the existence of the said partnership agreement, the breach thereof, the need to account for the assets held and disposed of without his knowledge and consent, and the orders sought in relation to partition of the assets. He averred that he has been paying the land rates and land rent for all that property known as L.R No. 36/11/267 as its beneficial owner before the resolution of all the matters in relation to their partnership.
29. He further averred that he had a working relationship with the defendant in the partnership in which he was mainly involved in the running and management of the transport business. He stated that some of the contracts secured by the partnership were a contract with Kenya National Trading Corporation Limited to transport goods to Coral Bay Limited in Ethiopia sometime in the year 2007, a contract with plastic products company limited to transport goods to Crane Plc, Ethiopia and a contract with Athi River Mining Limited to transport goods to Coral Bay Limited, Ethiopia. In addition, he stated that their joint venture also enabled them to buy matatus which were plying the Nairobi-Githurai route.
30. It was stated by the plaintiff that he was also involved and indeed settled claims for persons whose members of their households lost their lives in an accident involving their motor vehicle registration No. KAM 906Z at Moyale sometime in January 2002 as evidenced by the documents attached to his supplementary affidavit, in which he was referred to as Abraham Soso of Manyatta Burji and the owner of lorry registration No. KAM 906Z.
31. He further stated that it never occurred to him that the defendant would turn against him and claim that all the assets registered in his name were as a result of his hard work. He deposed that he trusted that the defendant would acknowledge his contribution in the partnership and ensure equal distribution of the assets acquired during the pendency of the partnership and that is why it never bothered him in having the properties registered in the name of the defendant.
32. He further stated that it was convenient to have the properties registered in the name of the defendant since he was in Nairobi most of the time, whereas he was based in Moyale. As a result, most of the documents in relation to the partnership were prepared in the defendant’s name.
33. The plaintiff asserted that the defendant was in charge of supervision of projects in Nairobi, while he was in charge of the transport business and remitting the proceeds into bank accounts opened and operated in the name of the defendant. He averred that it is evident from the defendant’s replying affidavit that his intentions have always been to take his share in the partnership which intention should not be tolerated and/or accepted by this Court.
34. In the defendant’s replying affidavit sworn by Sode Mohamed he deposed that he knows the plaintiff and the defendant since they all come from Marsabit. He averred that the plaintiff has been an employee of the defendant for the last 25 years and that the defendant would supply them with goods in Marsabit, they would sell and remit the proceeds of the sale into his bank account.
35. The defendant in his supplementary affidavit deposed that he would buy goods in wholesale, such as juice and other commodities in Nairobi, and send them to Moyale where the plaintiff and other business people were engaged in selling them and after making a small profit, they would deposit the principal amount for the goods in his account.
36. He averred that the deposits shared by the plaintiff began in 2007 when he was buying fast moving consumer goods like mattresses and flour from him. He further averred that he got into a contract with Athi River Mining Limited to transport goods to Moyale and they would pay him with cheques in his own name.
37. It was stated by the defendant that goods from KNTC, Crane PLC in Ethiopia, Athi River Mining and Coral Bay Limited, in Ethiopia were all sourced from Nairobi and then goods would be consigned to Moyale and thereafter, they would pay him in cash or deposit dollars in his USD account. He further stated that the plaintiff has not tendered any evidence to prove that he is the same Abraham Soso referred to in paragraph 16 of his supplementary affidavit.
38. The defendant deposed that the monies paid into his various bank accounts by the plaintiff were for goods supplied and transportation costs thus they cannot be interpreted as evidence of a partnership business. On analyzing the KCB bank slips, the defendant contended that the plaintiff sent him a total of Kshs.12,844,350.00, yet he is seeking this Court to award him a 50% share of the defendant’s properties, assets and earnings.
39. The defendant averred that some of the claims made by the plaintiff go as far back as over fifteen (15) years ago, and as such, they are barred by limitation of time. He further averred that if at all there was any element of fraud, the plaintiff would have reported him to the relevant authorities for obtaining money by false pretences.
Whether this Court has the requisite jurisdiction to determine the dispute between the parties herein.
40. It is trite that in any litigation jurisdiction is central and Courts of law cannot validly take any step without it. The locus classicus on jurisdiction is the case of the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Nyarangi. J, held that jurisdiction is everything and without it, a Court of law must down its tools in respect of the matter before it. Further, the Supreme Court of Kenya stated in the case of Samuel Kamau Macharia v KCB and others [2012] eKLR that -
“A Court’s jurisdiction flows from either the Constitution or Legislation or both. Thus, a Court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law………the Court must operate within the constitutional limits. It cannot expand jurisdiction through judicial craft or innovation.”
41. From the pleadings in this case, it is evident that the plaintiff’s claim is founded on an alleged oral partnership agreement. His case is that he got into a partnership agreement with the defendant sometime in the year 1997 and as a result of the said partnership, they acquired several movable and immovable properties including all that parcel of land known as L.R. No. 36/11/267. He averred that the said partnership has since broken down and the defendant has taken ownership of all the assets purchased in the partnership to his exclusion. It was stated by the plaintiff and that sometime in the year 2015, in a bid to settle the dispute between him and the defendant, it was agreed by the parties herein that the defendant would transfer ownership of all that parcel of land known as L.R. No. 36/11/267 to the plaintiff and the latter would take possession of the said parcel of land immediately.
42. The plaintiff contended that the defendant has never effected the said transfer but instead, on 22nd December, 2021, he purported to introduce strangers to the premises erected on the said parcel of land and to engage them as his estate agents. The plaintiff now wants this Court to issue an injunction order against the defendant and/or any other person claiming under him restraining him from taking possession, appointing agents to lease, let or in any other manner deal with premises erected on Land Reference Number 36/11/267 pending the hearing and determination of the suit. In the main suit, the plaintiff seeks an order for division of the assets purchased during the pendency of the partnership agreement between the plaintiff and the defendant which includes the aforementioned parcel of land.
43. The defendant has challenged the instant application on grounds of jurisdiction. He submitted that the plaintiff’s application touches on issues related to use, occupation and ownership of land which is the preserve of the Environment and Land Court pursuant to the provisions of Section 13 of the Environment and Land Court Act and Article 162 of the Constitution of Kenya, 2010. Pursuant to the provisions of Article 165(5) of the Constitution of Kenya, 2010, the High Court does not have jurisdiction in respect of matters falling within the jurisdiction of the Courts contemplated under Article 162(2) of the Constitution, which include the Environment and Land Court and the Employment and Labour Relations Court.
44. It is trite that the Environment and Land Court has original and appellate jurisdiction to hear and determine all disputes relating to the environment, the use and occupation of, and title to land pursuant to the provisions of Section 13 of the Environment and Land Court Act. The above notwithstanding, Courts have on several occasions held that when faced with a controversy on whether a particular case being a land related dispute should be litigated at the Environment and Land Court or not as is the case herein, the Courts utilize the Pre-dominant Purpose Test. The Court in the case of Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another (supra) when faced with a similar controversy held the following-
“In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works.
The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse.”
45. The plaintiff’s suit is anchored on an alleged oral partnership agreement between him and the defendant allegedly entered into in the year 1997. The plaintiff averred that during the pendency of the said partnership, they purchased several movable and immovable assets including all that parcel of land known as L.R. No. 36/11/267 which is the subject of this application. The plaintiff now claims he is entitled to a half share of the same. It is not disputed that in the main suit, the plaintiff seeks judgment against the defendant inter alia for a declaration that the partnership between the parties herein has broken down, that the plaintiff is entitled to half of all the assets to the partnership and a permanent injunction restraining the defendant or any other person claiming under him from selling. alienating, transferring, charging or parting with possession of the assets acquired during the pendency of the partnership between the plaintiff and the defendant.
46. In light of the foregoing, it is my finding that the primary dispute between the parties herein is on whether there exists a partnership agreement between them, whether assets were bought as a result and/or during the pendency of the said partnership, and whether the plaintiff is entitled to a half share of the said assets. The parcel of land that is the subject to the application herein is alleged to have been bought during the pendency of the said partnership thus the plaintiff wants the defendant restrained from disposing and/or alienating it, pending the outcome of the main suit. Consequently, it is my finding that the dispute herein does not primarily fall within the confines of Section 13 of the Environment and Land Act and Article 162 of the Constitution of Kenya, 2010 since the cause of action is predominantly as a result of an alleged partnership agreement. For this reason, I hold that this Court has jurisdiction to hear and determine the instant application. In the result, the defendant’s Notice of Preliminary Objection is not merited and it is hereby dismissed, with costs to the plaintiff.
Whether the application herein is fatally defective in light of the provisions of Order 2 Rule 6(1) of the Civil Procedure Rules, 2010.
47. Counsel for the defendant cited the provisions of Order 2 Rule 6(1) of the Civil Procedure Rules, 2010 and submitted that the instant application is fatally defective as the prayers sought are inconsistent with the prayers sought in the plaint. The instant application seeks an order for injunction restraining the defendant or any other person claiming under him from taking possession, appointing agents to lease, let or in any other manner deal with premises erected on Land Reference Number 36/11/267 pending the hearing and determination of this suit and for the defendant to be compelled to produce the documents of title in relation to parcel of land namely L.R. No. 36/11/267 including the statement of account and any encumbrance thereon.
48. Looking at the prayers sought by the plaintiff in his plaint, it is evident that prayer (e) seeks an order for permanent injunction restraining the defendant or any other person claiming under him from selling, alienating, transferring, charging or parting with possession of the assets acquired during the pendency of the partnership between the plaintiff and the defendant. The plaintiff’s contention is that the said parcel of land was purchased by the defendant and himself during the pendency of their partnership agreement thus it forms part of the assets acquired during the pendency of the said partnership. Accordingly, it is my finding that the prayers sought in the instant application are not inconsistent with the prayers sought in the plaint, thus the instant application is not fatally defective.
Whether the plaintiff has met the conditions to warrant grant of an interlocutory injunction against the defendant.
49. Temporary injunctions are provided for under Order 40 Rule 1 of the Civil Procedure Rules, 2010, which 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) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
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."
50. It is trite that in an application for an interlocutory injunction, the onus is on the applicant to satisfy the Court that it should grant such an order. The test for granting of an interlocutory injunction was considered in the case of American Cyanamid Co. v Ethicom Limited [1975] A AER 504 where three elements were noted to be of great importance namely:
i) There must be a serious/fair issue to be tried;
ii) Damages are not an adequate remedy, and
iii) The balance of convenience lies in favour of granting or refusing the application.
51. The Court of appeal in the case of Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others [2003] eKLR, considered what constitutes a prima case and held that -
“So what is a prima facie case" I would say that in civil cases it 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.”
52. The plaintiff’s case is that all that parcel of land known as L.R. No. 36/11/267 was purchased during the pendency of a partnership agreement between the defendant and himself entered into sometime in the year 1997. He averred that sometime in the year 2015 in a bid to settle the dispute between the parties herein, he and the defendant agreed that the defendant would transfer ownership of all that parcel of land known as L.R. No. 36/11/267 to the plaintiff and the plaintiff would take possession of the said parcel of land immediately. However, the defendant never effected the said transfer but instead, on 22nd December, 2021, he purported to introduce strangers to the premises erected on the said parcel of land and purported to engage them as his estate agents.
53. The plaintiff therefore urges this Court to issue an injunction order against the defendant and/or any other person claiming under him restraining him from taking possession, appointing agents to lease, let or in any other manner deal with premises erected on Land Reference Number 36/11/267 so as to preserve it pending determination of the dispute between the parties herein.
54. The defendant in his replying affidavit averred that he is the absolute and indefeasible owner of all that parcel of land known as L.R. No. 36/11/267, therefore his right of ownership of the said property cannot be interfered with by the plaintiff. He further averred that the plaintiff has not disclosed any legal right or interest that he enjoys that has been prejudiced by the defendant’s ownership rights to warrant grant of the orders sought herein.
55. It is trite that pursuant to the provisions of Sections 107 & 109 of the Evidence Act, Cap 80 Laws of Kenya, he who alleges must prove. The plaintiff has not tendered any documentation in form of a land sale agreement between himself and the defendant and the previous owner of L.R. No. 36/11/267 to establish that there was an agreement in writing by the plaintiff and the defendant to the effect that the defendant would purchase the said parcel of land on their behalf. The plaintiff did not provide proof of monetary contribution towards purchase of the said parcel of land, in support of the allegation that L.R. No. 36/11/267 was bought as a result of a the partnership agreement between him and the defendant for their benefit as partners, thus he is entitled to half of it.
56. The defendant on the other hand annexed to his replying affidavit as annexure No. KNJ (e) a copy of an agreement for sale for plot No. 267 of Section II Eastleigh Nairobi dated 15th October, 2003 and conveyance of plot No. 267 of Section II Eastleigh, Nairobi dated 30th December, 2003 both between the defendant as the purchaser, and Wairimu Kinyanjui as the vendor in support of the averment that he is the absolute and indefeasible owner of all that parcel of land known as L.R. No. 36/11/267 and that he bought the said parcel of land in his capacity as an individual and not jointly with the plaintiff.
57. I am of the considered view that for the plaintiff to successfully demonstrate that he has a prima facie case against the defendant with a probability of success in respect to parcel of land L.R. No. 36/11/267, he has to establish that he has a justifiable legal right or interest in the said parcel of land. As explained hereinabove, the plaintiff has not tendered any evidence to that effect. In the absence of proof of ownership, co-ownership or any justifiable legal right or interest in the subject parcel of land, this Court finds that the plaintiff has not discharged his burden of establishing a prima facie case against the defendant with a probability of success.
58. On whether the plaintiff stands to suffer irreparable injury that cannot be adequately compensated by an award of damages in the event the instant application is not allowed, I am of the view that this is not the case. This is because the subject matter in question is a parcel of land whose value can be ascertained through valuation thus the plaintiff can be adequately compensated by an award in damages in the event this suit is determined in his favour.
59. My finding is that the balance of convenience tilts in favour of the defendant since the plaintiff has not established a prima facie case against the defendant with a probability of success.
Whether the defendant should be compelled to produce the documents of title in relation to parcel of land namely L.R. No. 36/11/267 including the statement of account and any encumbrance thereon.
60. The plaintiff having failed to prove and/or demonstrate that he owns, co-owns and/or he has any justifiable legal right or interest in all that parcel of land known as L.R. No. 36/11/267, this Court cannot compel the defendant who has demonstrated on a balance of probability that he is the absolute and indefeasible owner of the said parcel of land to produce the documents of title in relation to it including the statement of account and any encumbrance thereon as this will amount to interfering with the defendant’s rights to property enshrined under Article 40 of the Constitution of Kenya, 2010.
61. The upshot is that the application dated 27th December, 2021 is bereft of merit it is hereby dismissed with costs to the defendant.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 8th day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
No appearance for the plaintiff
Mr. Ochieng for the defendant
Ms. B. Wokabi – Court Assistant.