[2022] KEELC 999 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC NO. E019 OF 2021

ABRAHAM MUTHEE M’ETHAIBA

(Suing as legal representative ofETHAIBA M’TUOROI(Deceased)..............................................PLAINTIFF

VERSUS

1. LAND ADJUDICATION SETTLEMENT OFFICERIGEMBE/TIGANIA WEST.....1ST DEFENDANT

2. LAND REGISTRAR MERU COUNTY...........................................................................2ND DEFENDANT

3. ATTORNEY GENERAL...................................................................................................3RD DEFENDANT

4. SEKUNDU MURIIRA IBAYA .........................................................................................4TH DEFENDANT

5. EDWARD AYUB MBOGORI ..........................................................................................5TH DEFENDANT

6. ROMANO NTONGAI ..................................................................................................... 6TH DEFENDANT

7. GEOFFREY K. IGWETA ................................................................................................7TH DEFENDANT

8. JUSTUS GITUMA ............................................................................................................ 8TH DEFENDANT

9. KALAWA IBAYA ............................................................................................................. 9TH DEFENDANT

10. BENARD IBAYA ...........................................................................................................10TH DEFENDANT

11. FRANCIS KIRIAKABU ................................................................................................11TH DEFENDANT

12. JOSPHAT MWITI ......................................................................................................... 12TH DEFENDANT

13. MWONKARI NKUBIRIA ............................................................................................ 13TH DEFENDANT

14. DOREEN KAIRIGO ..................................................................................................... 14TH DEFENDANT

15. GIDEON GITONGA ......................................................................................................15TH DEFENDANT

16. GEORGE MWITI IGWETA ....................................................................................... 16TH DEFENDANT

17. COUNTY GOVERNMENT OF MERU...................................................................... 17TH DEFENDANT

18. JAPHITA NTONGAI ................................................................................................... 18TH DEFENDANT

19. TITUS WAMBUA .........................................................................................................19TH DEFENDANT

20. ISAAC MUKARIA MUTABARI................................................................................ 20TH DEFENDANT

21. JESSEE KAUME ......................................................................................................... 21ST DEFENDANT

RULING

1. Through an application dated 25. 5.2021 this court is asked to grant the applicant permanent orders of maintenance of status quo regarding the suit parcels of land and in the alternative temporary orders of injunction restraining the 4th – 21st respondents from evicting the applicant and his family from the land formerly known as No. 1056 Uringu 1 adjudication section now consisting subdivisions named in prayer 3 above and further to restrain the 10th defendant from excavating and or carrying out quarry materials from L.N. Nyambene/Uringu 1/5849 pending hearing and determination of this suit. The application is supported by an affidavit sworn by the plaintiff/applicant on 25. 5.2021.

2. The grounds of the application are: the subdivisions are illegal, and were done unprocedurally; the plaintiff and his family live on the suit parcel and have immense developments unlike the 4th – 21st defendants; the title deeds exist on paper and there are no boundaries on the ground; threats have been issued to forcefully enter and or evict the plaintiff and unless the orders are issued, the plaintiff stands to suffer grave loss and damage and the suit shall be rendered nugatory.

3. In the supporting affidavit, the applicant repeats the grounds on the face of the application, save that his late father was the initial owner of Parcel No. 1056 during the adjudication period which he had gathered measuring approximately 10. 21 acres and settled his family there.

4. That there arose a dispute during the adjudication process leading to Judicial Review Application No’s 67 of 2009 and 68 of 2009 which were dismissed on technicalities. That during pendency of the application, the respondents unprocedurally, illegally and without notice subdivided the land in 2018 in favour of 4th – 21st respondents orchestrated by the 1st and 2nd defendants yet there are no physical boundaries or beacons on the ground identifiable by the respective purported title holders.

5. That the applicant states he discovered the fraud in July 2018 and filed the suit. The applicant has attached a grant, the ruling dated 2. 11. 2017, copy of title deeds and searches, map and ground identification letter to the chief dated 15. 7.2018 marked as annextures AM1 – 05 respectively.

6. The application was opposed by the 4th, 7th – 14th, 16th, 18th 21st respondents through a replying affidavit sworn on their behalf by Senkundu Muriira Ibaya on 8. 10. 2021 and the 15th respondent through a replying affidavit sworn on 23. 9.2021.

7. Similarly, the 6th respondent opposed the application through the affidavit sown on 14. 10. 2021.

8. As regards the 4th – 14th, 16th, 18th and 21st respondents’, the basis of the opposition is that the application is seeking eviction orders under the guise of injunction yet they have been in occupation with various developments including residential houses and farming activities; that L.N No. 325 belonged to their deceased father and was irregularly included in the suit who passed on in 1988 as per the chief’s letter marked as SM “3”; the 20th defendant wss deceased as per death certificate marked SM “4”; the 9th and 20th respondents do not own the alleged Parcels 325 and 5973; the parcels have clear boundaries on the ground; they are registered owners who should not be injuncted from their land; the applicant lacks locus standi, has annexture AM 1 lapsed after 90 days long before the suit was filed on 7. 6.2021; the parcels were issued after A/R objection No’s 721 and 216 were determined in their favour on 5. 3.2019 and 6. 3.2008 as per annexture SM1 “5”; judicial review case was dismissed on 2. 11. 2017; hence, the determination of the A/R rulings became final under Sections 19 and 26 (3) of the Land Consolidation Act;the suit herein was disguised as an appeal which cannot stand in law for the court lacks jurisdiction; the map annexed as AM 04 was not genuine as the parcels are situated in Uringu area in Tigania West Sub-County and not Igembe area which is in Igembe Sub-County and lastly the letter dated 15. 7.2018 is erroneous.

9. On the part of the 6th respondent, he oppose the application on the grounds that he got registered on 12. 1.2014 as per his title deed marked R.N “1” but had acquired the land in 1984 and has been living there under threats and intimidation from the applicant and that the applicant’s suit was time barred on account of failing to invoke the internal mechanisms under Caps 283 and 284, within the stipulated time or at all.

10. Regarding the 15th respondent, he opposed the application on the grounds that he was lawfully registered owner of L.N. 885 as per his certificate of title and search whose root was from his late mother Ruth Kathiri M’Mwithimbu (deceased), who had occupied the land since 1962, was registered in 1967 and upon her death, he replaced her; has developed his portion; there are clear maps on boundaries; the plaintiff’s land was separate and distant from his land and was duly determined through objection No. 1228 as per decisions of the adjudication committee; the plaintiff’s deceased father who was a brother to his mother had not filed any objection over L.R 885, Uringu I 1056 acreage was 6. 79 acres and not 10. 21 Ha as alleged and that he was not a party to the judicial review cases. He attached annextures GG1 (a) (b) - GG6 respectively, in support of his averments.

11. With leave of court, parties filed written submissions dated 2. 11. 2021, 18. 11. 2021 and 14. 12. 2021 respectively.

12. The applicant submitted he had met the threshold for the grant of the orders sought based on the holding in Nguruman Ltd –vs- Jan Bonde Nielsen & 2 Others [2014] eKLR, Giella –vs- Cassman Brown [1973] E.A 358, Mrao Ltd –vs- First American Bank of Kenya & 2 Others [2003] KLR 125, Moses C. Muhia Njoroge & 2 Others –vs- Jane W. Lesaloi & 5 Others [2014] eKLR and Pius Kipchirchir Kogo –vs- Frank Kimei Tenai [2018] eKLR on the proposition on prima facie case, irreparable damage and balance of convenience based on the facts and evidence attached to his application.

13. The 4th, 7th to 14th, 18th and 21st respondents submitted that the absence of a supplementary affidavit, the replying affidavit remained uncontroverted hence the orders sought could not be available to the applicant for lack of demonstration of a prima facie case; of any injury incapable of being compensated and where the balance of convenience tilted in favour of the respondents as held in Giella –vs- Cassman Brown and Nguruman Ltd (supra).

14. The respondents further submitted annextures to their affidavits in reply showed they were in occupation, there were clear boundaries, some parties were sued while dead, they were registered owners with title deeds, the applicant lacked legal capacity to institute the suit, the respondent duly followed the correct procedures as laid out under Caps 283 and 284 to acquire the land which was not objected to by the applicant and that in line with Article 40 of the Constitution, they had protectable rights to own and occupy the land which under Sections 107, 108, 109 and 112 of the Evidence Act have not been challenged or otherwise impeached by the applicant. Reliance was placed on Kenya Commercial Finance Co. Ltd –vs- Afraha Education Society as cited in Win Njoki Kori –vs- James Kianja Karanja & Another [2017] eKLR,on the proposition that if a prima facie case is not established, then irreparable injury and balance of convenience need not be considered and that the existence of a prima facie case does not permit leap frogging by the applicant to injunctions directly without crossing the other hurdles.

15. On the issue of uncontroverted replying affidavit, the respondents relied on Charter House Investments Ltd –vs- Simon K. Sang & 2 Others Civil Appeal No. 315 of 2004 on the proposition that a temporary injunction was not as a matter of rights but of sound judicial discretion where a court balanced the convenience of the parties and the possible injuries to them and to third parties.

16. The 15th respondent submitted the plaintiff/applicant in the plaint was seeking declaratory orders that the suit parcels of land were fraudulently obtained and registered hence are null and void and that the 2nd defendant should rectify the register and register him the sole registered owner, an order for the 4th – 21st defendants to deliver vacant possession of all the titles to him and a mandatory injunction restraining the 4th – 21st defendants form entering and interfering with his occupation of the suit parcel’s.

17. It was submitted Parcel No. 885 registered in favour of 15th respondent was distinct and separate and its acquisition and registration was lawful hence the plaintiff had not established a prima facie case with a probability of success; there was no likelihood of irreparable loss and damage and that the balance of convenience favoured the 15th respondent in not granting any orders. Reliance was placed on Nehemiah Charles Omwoyo –vs- Attorney General & 2 Others [2021] eKLR and Gladys Mumbi Irungu –vs- David Gikaria & 2 Others [2017] eKLR.

18. The basis of the plaintiff’s claim is the plaint dated 25. 5.2021 in which he has sued the 1st, 2nd and 3rd defendants who unfortunately have not entered appearance or replied to the application for conspiring and illegally subdividing during adjudication process Parcel No. 1056 initially gathered and demarcated in the name of his deceased father, M’Ethaiba Mutuoro in favour of his relatives 1st – 4th to 16th, 17th, 18, 19th, 20th and 21st defendants.

19. Further, it is averred the 2nd defendant subsequently registered the aforesaid defendant as title holder to the subdivisions including the 17th defendant who had not entered appearance or opposed the motion.

20. The plaintiff averred the aforesaid actions by the 1st, 2nd and 3rd defendants were illegal, fraudulent, null and void hence prayed they be declared so, the title deed be invalidated and reversed in his favour and the defendants to be ordered to deliver to him vacant possession of the parcels and lastly the defendants be restrained from interfering with his quiet possession and occupation of the parcels.

21. Summons to enter appearance were issued on 14. 6.2021. The 4th, 7th to 14th, 15th, 16th, 18th, 20th and 21st defendants entered appearance and filed defences dated 21. 9.2021 and 16. 9.2021 respectively.

22. The 15th defendant in compliance with Order 11 filed a list of witnesses witness statements and list of documents dated 23. 9.2021, whereas the 5th and 6th defendants only entered appearance but filed no defence.

23. Having gone through the application, the replying affidavits, written submissions by the parties and the pleadings herein, the issue for determination is whether the applicant has made out a case for the grant of the prayers sought.

24. Both parties agree on the law, principles and guidelines applicable in the grant of an interlocutory application as laid out in the various case law quoted for and against the application.

25. The applicant seeks for a permanent order for the maintenance of status quo over the subject parcels of land and or in the alternative temporary orders of injunction restraining the 4th – 21st defendant either by themselves, agents or employees from evicting the plaintiff and his family from the land formerly known as No. 1056 Uringu adjudication section now consisting of all the subdivisions herein.

26. The respondents have filed statements of defence and raised issues that they are in possession of title deeds which resulted out of successful objections determined in 2008 for the 4th, 7th to 14th, 16th, 18th 20th and 21st defendants and regular title deeds for 6th and 15th defendants, registered in 2014 and titles issued in 2015.

27. The searches produced by the applicant has also confirmed the registration of the parcels under the Land Registration Act occurred on 28. 11. 2014. Similarly, annexture marked AM-05 15. 7.2018 indicates the ground identification and boundary establishment occurred in 2018.

28. The applicant at paragraph 13 of the supporting affidavit states he came to know about the alleged registration in favour of the respondents in July 2018 and caused searches to be undertaken on 3. 4.2018.

29. It is not clear why the plaintiff/applicant did not file the suit immediately and had to wait until 7. 6.2021 to move the court. The delay was not explained at all.

30. Secondly and more importantly, the ruling in Judicial Review 68 of 2009 was made on 2. 11. 2017. The applicant knew the implications of the dismissal of his applications. There is no explanation on what other actions the applicant took to safeguard his interests if any, in the suit lands.

31. Thirdly, the applicant has not attached any documents showing his late father was ever recorded as an owner of the Parcel No. 1056. There was no search or adjudication record attached showing that the applicant ever had interest on the suit parcels of land and or was in occupation thereof so as to have any demonstrable right which has been breached by the respondents calling for protection as held in Mrao Ltd Vs. First American Bank of Kenya Ltd & 2 Others (2003) KLR 125.

32. The respondents have demonstrated that they hold valid title deeds which under Section 25 of the Land Registration Act are prima facie evidence of ownership unless they are impeached on account of illegality or invalidity.

33. The applicant as indicated above did not reply to the defences and or seek for leave to put in a supplementary affidavit to counter the contents of the replying affidavits. Similarly, the applicant has not explained the exact status quo of the suit parcels at the filing of the suit.

34. Be that as it may, the respondents have attached documents to show that they are in occupation of the suit parcels of land. Therefore my finding is that the applicant has not established a prima facie case with a probability of success.

35. The applicant says that if the orders sought are not granted, his suit shall be rendered nugatory and his right to be heard compromised. As indicated above, there are conflicting claims by each side though at the moment the 4th to 21st respondents hold valid titles.

36. As held in Registered Trustees of Faith Mission Church and 10 Others –vs-Ngaruiya [2022] KECA 57 KLR the ownership of suit properties is reversible depending on the circumstances and the applicable law. Therefore, I do not see how the suit shall be rendered nugatory given the delay in filing the suit since 2014 when the registration occurred and 2017 when the judicial review cases were dismissed.

37. As regards the claim for status quo in Shimmers Plaza Ltd –vs- National Bank of Kenya Ltd [2015] eKLR, the Court of Appeal held that status quo means the present situation, the way things stand when the order is made, the existing state of things and cannot relate to the past or future occurrence or events.

38. Based on the documents filed by the parties, what this court can deduce is that the parties who are described as relatives are all in occupation of the suit premises though there is no agreement on whether there exists physical boundaries or not.

39. The respondents claim they are in occupation whereas the applicant states that there is an impending eviction. Still the 4th – 14th, 16th, 18th and 21st defendants allege the applicant and his family have never occupied the suit parcels of land.

40. Going by the objection proceedings, there is evidence that the respondents were in occupation in 2008.

41. In the premises, I disallow the application with costs to the respondents.

42. Parties to comply with Order 11 within 45 days from the date hereof.

Orders accordingly.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU THIS 9TH DAY OF MARCH, 2022

In presence of:

Ondari for applicant – absent

Gitonga for 1st defendant – present

Kieti for 1st – 3rd respondents – present

Court Assistant - Kananu

HON. C.K. NZILI

ELC JUDGE