|Civil Suit 100 of 2010
|ABUD NOOR AWADH SWALEH GHALGAN v BERNARD OMONDI
|28 Mar 2011
|High Court at Malindi
|Hellen Amolo Omondi
|ABUD NOOR AWADH SWALEH GHALGAN v BERNARD OMONDI  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
ABUD NOOR AWADH SWALEH GHALGAN …..........................………PLAINTIFF
The Notice of Motion dated 15th October 2011 is made under Order XXXV Rule 1 and 2 of the Civil Procedure Rules and section 3A of the Civil Procedure Rules, section 1A, 1B, and 3A of the Civil Procedure Act seeking that summary judgment be entered against the defendant as prayed in the plaint and the defendant do forthwith give the plaintiff vacant possession of all those suit premises known as plot no. 2173 (original No. 2092/9 Malindi), and/or defendant be evicted from the suit premises.
The grounds are that:
(a) The defendant, without the authority and permission of the plaintiff, entered the plaintiff’s property and has had unlawful occupation of the said property since 2009.
(c) The defence has no merits.
The application is opposed and in a replying affidavit sworn by Bernard Omondi he states that there are triable issues in his statement of defence, pointing out that he is only a tenant on the suit premises which were leased to him by DORCAS WACUKA GATHUNGU by a lease agreement dated 18th May 2010 and marked as BO1. The lease subsists as between him and the landlord and that he is not a trespasser. He refers to the plaintiff as a stranger, saying DORCAS handed over the house to him after showing him a sale agreement between the late husband G. MOLINO aka GIUSEPPE MOLINO and VALENTINE HINZANO PONDA and she further told respondent that there exists CRC no. 773 of 2005 and civil case no. 7 of 2005, in court, over the said property. He was also given a Grant of Letters of Administration issued to the said DORCAS to administer the estate of her late husband INAGO MOROSETTI.
It was submitted by Mr. Kilonzo that the defence case rests on claims that DORCAS WACUKA GATHUNGU was the legal owner of the suit premises by virtue of being the legal representative of the estate of INAGO MOROSETTI.
Further that the alleged mortgage over the suit property came before the sale of the property to the plaintiff and there was no restriction or inhibition to the suit premises.
Under the provisions of Order XXXIV Rule 1 (1) (b).
“b) The recovery of land, with or without a claim for rent or mesne profits by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for nonpayment of rent for breach of court or against persons claiming under such tenant or against a trespasser.
Where the defendant has appeared the plaintiff may apply for judgment for the amount claimed or part thereof and interest, or for the recovery of land and rent or mesne profits.”
Rule 2(1) of the same order recognizes that a defendant may show either by affidavit or by oral evidence or otherwise, that he should be granted leave to defend the suit.
It is Mr. Kilonzo’s submissions that the plaintiff has proved she is entitled to the orders she seeks, as she has shown that since 21st August 2009, she became the registered proprietor of the suit premises, pursuant to an indenture dated 17th August 2009 from one G. Molino and Valentine Hinzano Ponda, which was duly registered on 21st August 2009, and the same had no encumbrances. So her right of ownership has been proved and she was issued with a Title under the Land Titles Act (Cap 282). Mr. Kilonzo’s contention is that under section 21 of the Land Titles Act, the certificate of ownership is conclusive proof that plaintiff is the owner of all the coconut trees, house and buildings on the land unless there is noted in memorandum, to the contrary effect. Counsel points out that in the present case, there is no memorandum to the certificate showing that the defendant or any other third party has titles to the property.
Mr. Kilonzo sought to rely on the decision of Wamwea v Catholic Diocese of Muranga Registered Trustees KLR (2003) pg 389 which held that:
“(a) once a party acquires legal title over a parcel of land, such a party is entitled to not only to possession but also to occupation of the land.
The defendant has not shown that he executed the tenancy agreement with the rightful owner of the premises. He draws from the provisions of section 116 of the Evidence Act which provides:
“When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who approves that he is not the owner.”
On the strength of this, Mr. Kilonzo argues that defendant has failed to disprove that plaintiff was not the owner of the suit property and in possession of the same as at 18th May 2010 when the alleged tenancy was executed.
Mr. Kilonzo also submits that the defence does not raise any triable issue.
He referred to section 57 of the Land Titles Act which provides;
“After the issue of a certificate of ownership of a holding under this Act, every document affecting the holding or any interest in the holding shall subject to the provisions of this part, be registered in the register.”
Section 58 further addresses the effect of non registration, that:
“Every document unless so registered, shall be deemed to be void against all parties claiming an adverse interest thereto.”
It also does not bear stamp duty and Mr. Kilonzo urges me to be guided by the decision in GLENCOR GRAIN LTD V GRAIN MILLERS (2002) KLR Pg 606 at page 607.
Mr. Kilonzo’s argument is that in so far as the plaintiff applicant was not a party to the suit, and also on the strength of the orders issued by Hon. Justice Ouko, then this court should not pay regard to the existence of the two mentioned suits and the court should not draw an inference that the defendant has a good defence based on those suits.
I did not receive written submissions by the respondent’s counsel, but there was a list of authorities to demonstrate why the application should not be granted. The position taken by the defence is that;
(a) Defendant is a bona fide tenant who believed that DORCAS was the legal owner of the premises, having been shown a certificate of postal search dated 2nd December 2005 which bore among the registered owners Margaret Wanjiru Monasetti and Anne Wambui Manosetti and the Letters of Administration issued to the said DORCAS. This was fortified by the witness statements recorded by Joseph Karisa Mwarandu, an advocate who recorded police statement relating to one Morosetti Inago and his dealings with the said property.
The defendant has demonstrated to this court, through various annextures, including a ruling in HCCC No. 7 of 2005, that the question as to who actually owns the property is far from settled, despite the fact that plaintiff has title, whose origin may well become of essence courtesy of the ruling on HCCC No. 7 of 2005 where Valentine Hinzano Ponda and Guiseppina Molino had sought to take possession of the same property from DORCAS WACUKA GATHUNGU and have her evicted. The issue of proprietary interests featured although the court declined to issue injunction orders which DORCAS had sought. However the court did not determine whether the property had been sold to Morosetti or not.
A triable issue does not mean an issue which will guarantee success, it is simply a matter which ought to be given a chance to be fairly considered before a conclusion is made. In the case of KENYA TRADE COMBINE LTD V M. M. SHAH CIVIL APPEAL NO. 193 OF 1999 (Unreported) the Court of Appeal stated:
So the ruling by Justice Ouko does not affect the standards expected in an application such as this one. – that one had as one of its standards, the probability of success.
My finding is that defendant has raised triable issues regarding:
a) The legality of his tenancy