REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO. 65 OF 2013

FELISTER CHITSAKA MWABAYA.......PLAINTIFF

=VERSUS=

1. HABIB ABU MOHAMED...............DEFENDANT

2. FRANKLINE GAMBO......................DEFENDANT

J U D G M E N T

Introduction:

1. The Plaintiff commenced this suit by way of a Plaint dated 10^th April 2013 and filed on 11^th April 2013.
2. In the Plaint, the Plaintiff averred that the 2^nd Defendant is her husband; that they have five (5) children and that since 1994, she has been living with the 2^nd Defendant and their children in a house standing on parcel of land known as Kilifi/Jimba/85 (the suit property).
3. It is the Plaintiff's case that on 8^th April, 2013, the 1^st Defendant went with surveyors on the suit property and started marking boundaries on the suit property and that the 1^st Defendant intends to deny her together with her children their matrimonial home.
4. The Plaintiff is seeking for a permanent injunction restraining the Defendants from trespassing and or entering into the suit property.
5. In his Defence, the 1^st Defendant averred that although the 2^nd Defendant and the Plaintiff have a house on the suit land, they also have another house in Timboni; that the Plaintiff and the 1^st Defendant are squatters on the suit property and that the two were evicted from the suit property vide Malindi HCCC No. 79 of 2006.
6. The 1^st Defendant averred in his Defence that after the decision in HCCC No. 79 of 2006, the 2^nd Defendant approached and offered for sell to him his swahili house standing on the suit property for Kshs.1,200,000.
7. It is the 1^st Defendant's case that the Plaintiff does not have any legally recognised proprietary interest in the suit property.

The Plaintiff's case:

8. The Plaintiff, PW1, informed the court that she is married to the 2^nd Defendant.  It was the evidence of PW1 that when people went to her matrimonial home in the year 2013 to place beacons on the suit land, they informed her that her husband, the 2^nd Defendant, had sold the land to the Plaintiff.
9. It was the evidence of PW1 that she was never involved in the sale of the suit property; that if she had been involved, she would not have agreed and that she has lived on the land for  more than 18 years.
10. In cross examination, PW1 stated that the house she lives in with her family stands on the land belonging to Mr. Stephen Rafael Garama.
11. It was the evidence of PW1 that they are squatters on the suit land and that she contributed to the construction of the house.
12. PW1 stated that her husband, DW2, never informed her that he had sold their matrimonial home.
13. According to PW1, she can only move out of the suit land if Stephen Rafael Garama tells her to move out.

1^st Defendant's case:

14. The 1^st Defendant, DW1, stated that initially, the suit property was registered in the name of Stephen Raphael Garama and that the Plaintiff and the 2^nd Defendant are squatters on the land.
15. According to DW1, Stephen Rafael sued the 2^nd Defendant together with other squatters in HCCC No. 79 of 2006 for vacant possession and after the court made a decision in favour of Stephen, the 2^nd Defendant offered to sell to him the house that was standing on the suit property.
16. According to DW1, he agreed to buy the 2^nd Defendant's house at a price of Kshs.1,200,000 of which he paid him Kshs.700,000.  The balance of Kshs.500,000 was to be paid after the 2^nd Defendant vacates the suit land.
17. The evidence of DW1 was that he further agreed with Stephen Rafael to buy the portion of land where the 2^nd Defendant's house was standing at a consideration of Kshs.3,000,000.
18. In cross examination, DW1 stated that the Plaintiff was aware of the transaction between him and the 2^nd Defendant.
19. Although he entered into an agreement with Stephen, DW1 informed the court that the land has not yet been transferred to him.

The 2^nd Defendant's case:

20. The 2^nd Defendant, DW2, stated that he is the Plaintiff's husband.
21. According to DW2, him together with the Plaintiff own the suit property which is their matrimonial home.
22. DW2 agreed that he entered into an agreement of sale with DW1 in September, 2012; that DW1 paid him Kshs.200,000 and gave him two posted cheques and that the total amount that he has received from DW1 is Kshs.700,000.
23. DW2 informed the court that he was aware Mr. Stephen Garama has sold to the 1^st Defendant 7 acres and that an order of eviction was issued against them in HCCC No. 76 of 2006.

Submissions:

24. The Plaintiff's counsel submitted that the Plaintiff was excluded from the agreement of sale between the 1^st Defendant and the 2^nd Defendant;  that Section 93(3)(b) of the Land Registration Act imposes a duty on the purchaser to inquire on whether the spouse has consented to the sale of land and that the 1^st Defendant did not inquire with regard to the Plaintiff's consent to the transaction.
25. Counsel submitted that the circumstances under which the suit property was being held by the Plaintiff and the 2^nd Defendant also gave rise to a constructive trust on the part of either spouse as would dis-entitle one spouse to undertake a disposition in the nature of a sale without the involvement of the other spouse.
26. The Plaintiff's advocate further submitted that in any event, having not paid the entire purchase price, the 1^st Defendant is not entitled to the possession of the suit property; that the two agreements are null and void for want of the consent of the Board and that the 1^st Defendant only bought 7 acres out of the 13.83 acres.
27. The 1^st Defendant's advocate submitted that the reason why the Plaintiff did  not sign the agreement between the 1^st and 2^nd Defendants was because in law, the 2^nd Defendant is an agent of necessity of his wife.
28. Counsel submitted that the section of the law cited by the Plaintiff do not help her case because the said laws only apply where a party is the registered proprietor of a property.
29. The 1^st Defendant's counsel finally submitted that to grant the orders sought would be to perpetuate an illegality by the Plaintiff and the 2^nd Defendant to remain as trespassers notwithstanding the judgment of the court.
30. The 2^nd Defendant on the other hand submitted that the agreement between him and the 1^st Defendant had not been completed by the time this suit was filed.
31. The 2^nd Defendant submitted that since the 1^st Defendant breached the agreement, the 2^nd Defendant is entitled to treat the agreement as repudiated.

 Analysis and findings

32. It is not in dispute that the Plaintiff is the wife of the 2^nd Defendant.
33. It is also not in dispute that the Plaintiff and the 2^nd Defendant live in a house constructed on a parcel of land number Kilifi/Jimba/85 which is registered in the name of Stephen Rafael Garama.
34. The Plaintiff is seeking for a permanent injunction against the Defendants on the ground that her permission was not sought when the 2^nd Defendant purported to sell their matrimonial house to the 1^st Defendant at a consideration of Kshs.1,200,000.
35. The Plaintiff's case is hinged on the provisions of Section 93(3)(b) of the Land Registration Act No.3 of 2012 which provides as follows:-

“Where a spouse who holds land or dwelling house in his or her name individually undertakes a deposition of that land or dwelling house....the assignee or transferee shall, if that deposition is an assignment or a transfer of land, be under a duty to inquire of the assignor or transferor on whether the spouse or spouses have consented to that assignment.....”

36. The evidence before the court shows that the Plaintiff's husband, DW2, does not own the suit land.
37. Indeed, the Plaintiff and her husband were ordered to vacate the suit property by the court in HCCC No. 79 of 2006.  The Judgment of the court in which the registered owner, Mr. Stephen Raphael Garama, sued the Plaintiff's husband and others was delivered on 15^th April 2013.
38. It would appear that even before the court delivered its decision on 15^th April 2013, the Plaintiff's husband sold to the 1^st Defendant “all that house situated on plot number Kilifi/Jimba/85” for Kshs.1,200,000.  The Plaintiff admitted in evidence that so far, he has been paid Kshs.700,000 leaving a balance of Kshs.500,000.
39. The agreement between the Plaintiff's husband and the 1^st Defendant further provided that the balance of Kshs.500,000 was to be paid upon the vendor giving vacant possession of the premises to the 1^st Defendant.
40. Even before the 1^st Defendant entered into an agreement with the Plaintiff's husband in the year 2010, the 1^st Defendant had entered into another agreement with the registered owner of the suit property on 12^th October 2005.
41. The above chronology of events shows that neither the Plaintiff nor her husband are the owners of the land on which the house that they live in stands.
42. Consequently, the provisions of Section 93(3)(b) of the Land Registration Act cannot come to their aid considering that they had no land in the first place to sell.
43. The act of the 1^st Defendant in buying the house standing on the suit property can only be out of the 1^st Defendant's  magnanimity considering that, firstly, the court had already ordered the Plaintiff and her husband to vacate the suit land and secondly, the 1^st Defendant had already entered into an agreement to purchase a portion of the suit land from the registered own.
44. Indeed, it is the 2^nd Defendant who stands to loose if the 1^st Defendant rescinds the agreement of 13^th September 2010 because other than refunding the Kshs.700,000 that has been paid to him, he will be required to demolish the house standing on parcel of land number Kilifi/Jimba/85 pursuant to the order of the court in HCCC No.76 of 2006.
45. The second reason why the Plaintiffs suit cannot stand is because the agreement of sale between the Plaintiff's husband and the 1^st Defendant is dated 13^th September 2010.
46. The Land Registration Act commenced on 2^nd May, 2012, way after the Plaintiff's husband had entered into an agreement of sale with the 1^st Defendant.
47. Consequently, the provisions of Section 93(3) of the Act cannot be used to defeat the enforcement of that agreement.
48. The issue as to whether the Land Control Board gave its consent or not after the agreement of 13^th September, 2010 was entered into is neither here nor there because it was not raised in the pleadings..
49. I say so because that issue was never raised in the Plaint.
50. For those reasons, I dismiss the Plaintiff's Plaint dated 10^th  April, 2013 with costs.

Dated and delivered in Malindi this  11^th day of   March, 2016.

O. A. Angote

Judge