|Civil Suit 136 of 2008
|SILVIA FRIGO v SONGHAI INVESTMENTS LTD, ZANELLATO MAURIZIO, CAMELLIA INVESTMENTS LTD, YURI CRISTODARO, DESIDERATA INVESTMENTS LTD & KA’MUKUTI INVESTMENT LTD
|25 Mar 2011
|High Court at Mombasa
|Jackton Boma Ojwang
|SILVIA FRIGO v SONGHAI INVESTMENTS LTD & 5 others  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
(Coram: Ojwang, J.)
2. ZANELLATO MAURIZIO
3. CAMELLIA INVESTMENTS LTD.
4. YURI CRISTODARO..........................................................................DEFENDANTS/RESPONDENTS
5. DESIDERATA INVESTMENTS LTD.
6. KA’MUKUTI INVESTMENT LTD.
2. MASY INVESTMENTS LTD. ...........................................................................AGGRIEVED PARTIES
“THAT the interim Orders issued by this Honourable Court on 27th August, 2009 and which were registered at the Land Registry, Kilifi on 18th September, 2009 be set aside and discharged accordingly.”
Desiderata Mariagrazia Bellomi, 5th defendant’s director, swore a supporting affidavit on 6th October, 2010: averring that the existing interim order imposes restraint against change of user for Plot No. Kilifi/Jimba/391 or any of the 21 parcels resulting from the sub-division thereof (Plot Nos. Kilifi/Jimba/1342 – 1362 inclusive); deponing that he had sought the vacating of the said orders by an application of 11th November, 2009; deposing that the Court file was at the time of the application of 11th November, 2009 before Mr. Justice Njagi for ruling on an earlier application by the applicant herein, of 9th August, 2008 __ and that application was seeking the setting aside of an ex parte judgment which had been entered in favour of the plaintiff/respondent herein; averring that Mr. Justice Njagi gave his Ruling on 8th January, 2010, setting aside the ex parte Judgment and decree; deponing that, by reason of the said Ruling of 8th January, 2010 the orders of 27th August, 2009 were rendered obsolete and a nullity; averring that the plaintiff after obtaining the orders of 27th August, 2009, caused them to be registered at the Land Registry, Kilifi on 18th September, 2009; deposing that so long as the said order of 27th August, 2009 remained on record, the applicant is unable to do any transaction in relation to Title No. Kilifi/Jimba/1343 of which the applicant is the beneficial owner.
For the plaintiff, learned counsel, Ms. Muyaa submitted that the dispute at this stage was not a straightforward one. Counsel submitted that it was common cause, Plot No. Kilifi/Jimba/391 was the subject-matter of the suit and ought not to have been sub-divided; that the “purported sub-division” was effected while there was a valid judgment and decree for sale of that plot; that those interested in buying houses on that plot (including the plaintiff) were looking to have a communal village with developments for the common enjoyment of all. Counsel urged that 5th defendant was in breach of its agreement with the defendant, in sub-dividing the plot into 21 portions; and that the sub-division was achieved “through obvious fraud and impunity.”
“It is necessary to preserve the property where it is until the suit is heard and finalized. The Court should look at this broader aspect to do justice to the parties. Should the applicant be allowed to have the transfer registered in their favour, they may sell their portions to unsuspecting third parties who have no knowledge of the illegality relating to the sub-division, thereby complicating matters further.”
Upon being moved by 1st defendant herein, the Court (Njagi, J), on 8th January, 2010 set aside a default Judgment entered by the Deputy Registrar on 8th July, 2008. In-between those two dates a number of orders were made, including the ones of 27th August, 2009 which were in favour of the plaintiff herein. The plaintiff, once he won such orders, exercised them and even had them registered at the Kilifi Land Registry, with the effect that 5th defendant/applicant has been unable to secure certain registrations at that Registry.
Learned counsel, Ms. Muyaa has sought retention of the interim orders even though, quite clearly, they are not consistent with the terms of the Ruling of 8th January, 2010 and they were not founded on the footing of the unquestionable validity of that Ruling. That being the position, the orders in question have been rendered spent.
Costs shall be in the cause.
DATED and DELIVERED at MOMBASA this 25th day of March, 2011.
J. B. OJWANG