The Environment and Land Court suspended proceedings before a Garissa Rent Restrictions Tribunal pending hearing and determination of a suit filed following land dispute between two brothers.
In the petition, the applicant who Aden Bare Shill argues that his brother who is a former Member of Parliament Elias Bare Shill moved to the Rent Tribunal seeking to have him evicted from the property they inherited upon their father’s death in 1973 on account of non payment of rent despite him being a non payment tenant.
This is after Kadhi’s court threw out an ownership suit before directing it to be heard before a competent court.
Justice John Muriungi Mutungi in his ruling held that damages would not be a remedy if the suit property which comprises five rental shops, five rental houses and two residential houses is not preserved pending hearing and determination.
“The proceedings before the Rent Restriction Tribunal on the face of the present proceedings are untenable. One gets the impression that the Defendant wanted to pull a fast one against the Plaintiff by getting him evicted from the premises,” ruled the court.
“How come from 1973 when their father died the Defendant had not sought to recover rent from the Plaintiff but all of a sudden following the collapse of the succession case before the Kadhi’s Court, the Defendant rushed to the Rent Restriction Tribunal Court to seek recovery of rent and eviction of the Plaintiff? It does appear that the Rent Restriction Tribunal case was not instituted in good faith and the 1st Respondent may have wanted to steal a match against the Plaintiff,” he said.
The court further restrained Elias Bare Shill from disposing of the suit property through sale or transfer, and also directed no additional charges to be placed on the property without an order from the court.
“The order that commends itself to the Court and which I hereby grant is that the parties shall be required to observe and maintain the prevailing status quo as appertains to the suit property pending the hearing and determination of the suit,” ruled Mutungi.
According to Aden Bare, his brother Elias Bare had previously attempted to transfer the suit property into his name when their late father was unwell however the attempts were resisted by the family.
He said when he discovered that the suit property was among 193 plots recommended for title deeds, he, along with two of his brothers, requested that the title deed be registered in the name of “Bare Shill Abdi & Sons” which was granted by the County Council.
However, during the succession proceedings in the Kadhi’s Court he learned that his brother had already acquired a title to the suit property.
Aden alleged that Elias obtained the title to the property fraudulently.
He disputed the claim that their father had distributed his estate while he was still alive .
The Applicant stated that he only became aware of the fraudulent transfer when he filed the Succession case in the Kadhi’s Court.
Additionally, he denied Elias allegations that he developed the property.
He contends that he was never a rent-paying tenant of his brother.
Furthermore, Aden claimed that his brother threatened to demolish structures on the property, which he claimed would result in loss to the deceased’s estate.
On his part, Elias Bare opposed the Applicant’s claim over the disputed property, saying it was legally transferred to him by his late father.
He stated that his father, who had six wives, had only two legal wives at the time of his death, including Aden’s mother.
He claimed the property was allocated to him to hold in trust for his family.
He denied allegations that his father was bedridden during the transfer, alleging he has been paying land rates since then.
In the application Aden Bare moved to court seeking orders restraining his brother from engaging in any actions that may interfere with the property.
“Pending inter parties hearing of the application, an order of injunction do issue restraining the 1st Defendant/Respondent whether by himself, his servants, his agents, advocates, employees, assignees, or otherwise howsoever and any person whatsoever from selling, disposing off, charging, subdividing. processing subtitles or leases, pledging, dealing, constructing. developing, interfering with and/or intermeddling in any manner whatsoever with all that property known as Garissa Township/Block 1/72 (previously known as Plot No. GSA 29 subsequently Plot No. GSA 72),” read the court documents.
Elias Bare Shill and Chief Land Registrar have been sued.
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