[2020] KEELC 1026 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MILIMANI

ELC CASE NUMBER 342 OF 2013

ABERDARE INVESTMENTS LIMITED...............................................PLAINTIFF

=VERSUS=

PAUL NYANJUI KAMOCHU.........................................................1ST DEFENDANT

DAVID WAKIUMU KARANJA.....................................................2ND DEFENDANT

JULIUS KIMANI THUO................................................................3RD DEFENDANT

SAMUEL NJOROGE GUCHU......................................................4TH DEFENDANT

PETER NJUGUNA MUTURO.......................................................5TH DEFENDANT

CHARLE SMUGWE MBURE.......................................................6TH DEFENDANT

SIMON NDUNGU MWAURA.......................................................7TH DEFENDANT

DANIEL KARANJA MURIGI......................................................8TH DEFENDANT

CHARLES MUCHOKI NDUNGU...............................................9TH DEFENDANT

SAMUEL THUKU GITAU.........................................................10TH DEFENDANT

KAGOMBE MUHANGU...........................................................11TH DEFENDANT

JOSEPH NGANGA KARANJA................................................12TH DEFENDANT

PETER MBURU.........................................................................13TH DEFENDANT

RICHARD MWANGI MWAI....................................................14TH DEFENDANT

CHRISTOPHER KIMANI ISSAK...........................................15TH DEFENDANT

RAPHAEL GICHUHI WANJOHI...........................................16TH DEFENDANT

FRANCIS MBAU MBURU......................................................17TH DEFENDANT

RUFUS MUCHIRI KAMAU....................................................18TH DEFENDANT

ALEXANDER KINYANJUI.....................................................19TH DEFENDANT

CASER MAINA MUTURI.......................................................20TH DEFENDANT

PETER KUNGU NJURU..........................................................21ST DEFENDANT

DAVID CHEGE MBIU.............................................................22ND DEFENDANT

NELSON KAMAU MWANGI.................................................23RD DEFENDANT

EZEKIEL MUTAVI MULANDI.............................................24TH DEFENDANT

JOHN NJOROGE MUTURI..................................................25TH DEFENDANT

PETTER WAWERU NJUGUNA...........................................26TH DEFENDANT

FRANCIS MUNGAI KANGETHE......................................27TH DEFENDANT

JOSPHAT KAMAU MBUGUA............................................28TH DEFENDANT

LUCY WAITHERA MINJA.................................................29TH DEFENDANT

BETH WAMBUI KANJA.....................................................30TH DEFENDANT

BEATRICE WAMBUI MWANGI........................................31ST DEFENDANT

PRISCA NJERI MBURU....................................................32ND DEFENDANT

PAULINE MUTHONI WAINAINA...................................33RD DEFENDANT

MAGARET WANGUI KIMANI........................................34TH DEFENDANT

MUMA SELF-HELP GROUP............................................35TH DEFENDANT

RULING

1. The Defendants/Applicants filed a Notice of Motion dated 14th January 2020 in which they seek the following orders: -

1) Spent

2) That pending the hearing and determination of this application the Defendant herein be and is hereby restrained from fencing off, developing and/or in any other way dealing with the suit property until the determination of this suit or until further express orders of this Honourable court permitting such dealing.

3) That in the first instance and until the hearing of this application inter-partes, a temporary injunction do issue in terms of prayer 2 hereinabove.

4) That costs be in the cause.

2. The Plaintiff/Respondent had filed an application seeking that the court orders the Applicants to provide security for costs in respect of a counter-claim they had filed. The Respondent’s application was allowed and the Applicants were ordered to deposit a combined security for costs in the sum of Kshs.10,000,000/= within 90 days failing which the Respondent would be at liberty to apply for dismissal of the counter-claim.

3. When the Applicants failed to deposit security for costs as ordered, the Respondent applied for dismissal of the counter-claim. In a ruling delivered on 28th March 2019, the Applicants’ counter claim was dismissed with costs. The Applicants now contend that the Respondent has moved to the suit accompanied by police and has started erecting a fence around it and has commenced deep excavation on the same.

4. The Applicants further contend that their Advocate wrote to the officer commanding Police Station, Thika asking him to desist from assisting the Respondent to commit an injustice. Despite these protests, the Respondent has continued to erect the said fence. It is on this basis that the Applicants are seeking the orders in this notice of motion.

5. The Respondent opposed the Applicants’ application based on a replying affidavit sworn on 6th March 2020. The Respondent contends that the Applicants have no right of audience before this Court, their counter-claim having been dismissed. The Respondent states that the Applicants have already preferred an appeal to the Court of Appeal against the ruling dismissing their counter-claim and that they cannot therefore litigate before this court and in the Court of Appeal at the same time.

6. The Respondent further contends that the Applicants were evicted way back in 2014 and it is therefore an abuse of the process of the court to file the application herein.

7. I have considered the Applicants’ application as well as the opposition thereto by the Respondents. The parties had been directed to file written submissions but as at the time this ruling was reserved on 16th September 2020, it is only the Applicants who had filed submissions. I have as well considered the Applicants’ submissions. The only issue for determination in this application is whether an injunction can be given to the applicant in the manner prayed for.

8. There is no contention that the Applicants’ counter-claim was dismissed. The Applicants have since moved to the court of appeal and filed civil Appeal No.279 of 2018 against the ruling dismissing the counter-claim. The Applicants had also filed an application dated 1st October 2019 seeking review of the ruling dismissing their counter-claim. The Appeal was filed before the application for review. This being the case, the Applicants have no basis upon which they can bring an application for injunction.

9. As the Applicants have filed an appeal against the ruling and given the fact that they had already been evicted from the suit property, they do not have basis upon which to ask for injunctive orders. They cannot even pursue review when they have already filed an appeal to the Court of Appeal. I therefore find that the Applicants’ application lacks merit. The same is dismissed with costs to the Respondent.

It is so ordered.

Dated, Signed and Delivered at Nairobi on this 15th day of October 2020.

E.O.OBAGA

JUDGE

In the Virtual Presence of : -

M/s Kiruthi for Defendants/Applicants

Court Assistant: Hilda

E.O.OBAGA

JUDGE