[2023] KEELC 22457 (KLR)

African Brotherhood Churh (Suing Through its Trustees Namely Timothy Nzyoki Ndambuki, Phillip Mutua Katiku & Richard Maingi Katiku) v Orbit Chemical Industries Limited & 6 others (Petition E016 of 2023) [2023] KEELC 22457 (KLR) (22 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22457 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Petition E016 of 2023

MD Mwangi, J

December 22, 2023

IN THE MATTER OF CONTRAVENTION OF ARTICLES 10, 22, 23, 24, 40, 47, 60, 66, 68, 69, 70, 73, 162(b), 232, 258 & 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ENVIRONMENT & LAND COURT ACT AND IN THE MATTER OF SECTION 4 & 5 OF THE FAIR ADMINISTRATIVE ACTIONS ACT AND IN THE MATTER OF SECTIONS 59, 60 & 65 OF THE COUNTY GOBVERNMENTS ACT AND IN THE MATTER OF THE ILLEGAL DEVELOPMENT OF MUTLIPLE DWELLIMG UNITS ON LAND PARCEL TITLE Nos. NAIROBI/BLOCK 263/1162 & NAIROBI/BLOCK 263/1163 BETWEEN

Between

The African Brotherhood Churh (Suing Through its Trustees Namely Timothy Nzyoki Ndambuki, Phillip Mutua Katiku & Richard Maingi Katiku)

Petitioner

and

Orbit Chemical Industries Limited

1st Respondent

Oloosayeti Engineering Limited

2nd Respondent

John Njuguna Chege

3rd Respondent

Nairobi City County

4th Respondent

Registrar of Titles, Nairobi

5th Respondent

National Land Commission

6th Respondent

Attorney General

7th Respondent

(In respect of the Petitioner’s application dated 11th April, 2023 seeking a temporary injunction amongst other orders)

Ruling

Background 1. The Petitioner moved this court vide a Notice of Motion application dated 11th April, 2023 seeking the following orders that;a.Spentb.Spentc.This Honourable Court be pleased to issue Temporary Injunctive/Interim Orders halting the construction of multiple dwelling units and/or further developments on land Title No. NAIROBI/BLOCK 263/1162 and Title No. NAIROBI/BLOCK 263/1163 in Nairobi by the 1st, 2nd and 3rd Respondents, their agents, servants or whomsoever acting on their behalf pending the hearing and determination of the Petition herein.d.This Honourable Court be pleased to issue Orders directed to the Chief Lands Registrar, Nairobi to avail the deed files for Land Title No. NAIROBI/BLOCK 263/1162 and Title No. NAIROBI/BLOCK 263/1163, in Nairobi, record of Ownership of the said parcels together with a record of all transactions on the said parcels pending the hearing and determination of the Application and Petition.e.This Honourable Court be pleased to issue Orders directed to the 5th and 6th Respondents to avail records of all transactions in their possession involving Land Title No. NAIROBI/BLOCK 263/1162 and Title No. NAIROBI/BLOCK 263/1163, in Nairobi pending the hearing and determination of the Application and Petition.f.The costs of this Application be provided for.

2. The Application is premised on the grounds of the face of motion and supported by an Affidavit sworn on 11th April, 2023 by Richard Maingu Kaliku, one of the trustees of the Petitioner. The Deponent avers that he has the authority to swear the affidavit on behalf of the other Trustees. He states that the Petitioner through its Trustees is the proprietor of Land Title No. NAIROBI/BLOCK 263/1162 and Title No. NAIROBI/BLOCK 263/1163, in Nairobi (hereinafter “the Suit Properties”) and brings the Petition in the capacity of a property owner whose rights have been threatened, violated and affected by the actions of the 1st, 2nd and 3rd Respondents.

3. The Deponent averred that the Petitioner has been in occupation of the suit properties for the last 7 years, challenges the illegal invasion of thereof by the 1st, 2nd and 3rd Respondents as well as the issuance of any approvals of building plans by the 4th Respondent for construction of multiple dwelling units. He deponed that if any building approvals were obtained from inter alia the 4th Respondent, it was done unlawfully, improperly and irregularly since the 3rd Respondent who purports to from the rights of the 1st and 2nd Respondents had no colour of right over the suit properties.

4. The Deponent avers that the 4th Respondent is aware that the Respondents have embarked the construction which will affect the Petitioner as well as its followers who will have no place of worship if not halted. It will further affect the Petitioners right to enjoy sanctity of its title documents and its proprietary rights as the actions of the 1st, 2nd, 3rd, 4th and 7th Respondents are a breach of the said rights enshrined in the Constitution.

1st Respondent’s Replying Affidavit 5. The Application was opposed by the 1st Respondent through a replying affidavit sworn on 31st July, 2023 by Sachen Chandaria who deponed that he was one of its directors. He explained that the suit properties were subdivided from L.R. No. 12425 acquired by the 1st Respondent from National Bank of Kenya. He stated that the original title has been subject of several cases by squatters laying claim thereto. He listed ELC Pet. No. 262 of 2018 Mukuru Kwa Njenga Slum Residents & 12 Others vs Nairobi County Government & 13 Others, HCCC No. 876 of 2004 and Civil Appeal No. 32 of 2014 thereto as well as ELC No. E007 of 2020, indicating that the 1st Respondent’s title was upheld in all these suits.

6. The 1st Respondent legally transferred the suit properties to the 2nd Respondent hence the titles produced by the Petitioner herein are forgeries as confirmed by investigations by the DCI Embakasi, and the Petitioner has not explained how it acquired them. The Deponent stated that the Petitioner has no claim on the suit property.

2nd Respondent’s Replying Affidavit 7. The 2nd Respondent also opposed the application through the Affidavit of one George Oner Ogalo, a director of the 2nd Respondent, sworn on 17th May, 2023. He averred that through his company, Geoner Systems Limited, he was appointed as a consultant to sub-divide L.R. No. 12425 for sale to third parties. The 1st Respondent was to pay the fee of KShs. 40,000,000/- through transfer of plots being the suit properties herein to Oloosayieti Engineering Limited where the Deponent was a Director and Shareholder.

8. The Deponent stated that Title No. Nairobi/Block 263/1163 has already been transferred, while Title No. Nairobi/Block 26/1162 is still in the process of being transferred. He stated that the suit properties do not belong to the Petitioner and thus it was trying to obtain court orders by fraud. He deponed that he sold the suit properties to the 3rd Respondent by Agreement dated 1st December, 2021 and is in the process of transferring to him. As the legal owner, the 3rd Respondents is within his rights to develop the said properties. He deponed that the Application and Petition are an abuse of the court process and ought to be struck out in limine.

3rd Respondent’s Replying Affidavit 9. The 3rd Respondent also filed a Replying Affidavit sworn on 25th May, 2023 opposing the Application. In it, he deponed that he purchased the suit properties vide Agreement dated 1st December, 2023 from the 2nd Respondent and the process of registering the transfers is still ongoing. He deponed that the suit properties were vacant, without any adverse claim at the time of purchase thus he took possession and is in the process of getting approval from the 4th Respondent to put up multi-stories apartments. He stated that the Petitioners claim arose after his possession and the dispute was handled by the Embakasi Police Station and the Police concluded that the Petitioner’s papers were forgeries.

10. He further deponed that even with this knowledge, the Petitioner has knowingly presented and is relying on the forged papers in this court as a basis for obtaining injunctive orders. The instant Application and Petition is an attempt to sanitize the Petitioner’s criminal and illegal activities, and is an abuse of the process of court as the Petitioner has approached court with unclean hands. The Petitioner is thus disentitled from benefiting from the discretion of the court as sought in the application.

4th Respondent’s Replying Affidavit 11. The 4th Respondent’s replying Affidavit was sworn on 11th May, 2023 by V.A. Onyango, it’s Ag. Director, Litigation. He deponed that the 4th respondent is not in receipt of any application for development permissions over the suit properties and has thus not issued any such approvals or permissions as required under Section 58 of the Physical Land Use Planning Act, 2019. For this reason, any construction activities on the suit properties are thus illegal, as such, if indeed there are illegal developments the person responsible is required under section 57(3) to restore the land. This can only be ordered after the court has determined the ownership of the suit properties. The 4th Respondent denied knowledge of the alleged construction or infringement of the Petitioner’s rights as alleged having not sanctioned any illegality on the suit property or at all. He urged that the Application and the Petition as against the 4th Respondent is misconceived, without basis and ought to be dismissed with costs.

6th Respondent’s Grounds of opposition 12. The 6th Respondent opted to oppose both the Petition and Notice of Motion Application by filing Grounds of Opposition dated 17th May, 2023 raising the following grounds:i.The Petitioner’s Application and Petition in respect of the 6th Respondent is misconceived, unnecessary, unwarranted and an abuse of the court process.ii.The Petitioner’s Application and Petition herein against the 6th Respondent is defective and bad in law as it offends the provisions of Article 67 (2) of the Constitution and Section 5 of the National Land Commission Act.iii.That the 6th Respondent is not the custodian of land documents and records as with regard to the subject properties.iv.In any event and without prejudice to the foregoing, the issue on custody of land documents and records was canvassed and determined by the Supreme Court in the Matter of the National Land Commission (2015) eKLR and is therefore not open for determination by this Honourable Court.v.That therefore there is no cause of action against the 6th Respondent to warrant the orders sought by the Petitioner as against the 6th Respondent.vi.That the orders as sought in the Petitioner’s Application and Petition are incapable of being enforced as or against the 6th Respondent.vii.The Petitioner’s Petition and Application lacks merit and should be dismissed with costs to the 6th Respondent.

Submissions 13. On 18th May, 2023 the Court directed that the application be canvassed by way of written submissions. The Parties complied.

Petitioner’s submissions 14. The Petitioner filed its submissions dated 26th July, 2023, submitting that the Petitioner is the proprietor of the suit properties having been issued a certificate of lease on 23rd March 2022. The law governing the granting of interlocutory injunction is set out under order 40(1) (a) and (b) of the Civil Procedure Rules 2010. The conditions for granting injunctions are set out in Giella vs Cassman Brown & Company Limited (1973) EA 358 as well as American Cyanide Co. vs Ethicom Limited (1975) All ER.

15. It was submitted that there is a dispute regarding ownership of the suit properties. That under Order 40 Rule 1 of the Civil Procedure Rules, where there is proof that any property in dispute is in a danger of being wasted, damaged, alienated or disposed of, the court ought to grant a temporary injunction to restrain such acts. There is no doubt that the suit properties risk being alienated by the 1st, 2nd and 3rd Respondents having claimed ownership thereof. Counsel submitted that the Application dated 11th April, 2023 thus meets the threshold set for the granting of orders of temporary injunction. He further relied on Mrao Ltd vs First American Bank of Kenya and 2 others, (2003) KLR 125 and Moses C. Muhia Njoroge & 2 others vs Jane W Lesaloi and 5 others, (2014) eKLR. Counsel submitted that the Petitioner’s right to the suit property has therefore been infringed by the 1st, 2nd and 3rd Respondents who even admitted that they took possession and started carrying out minor developments on the suit property, and concluded that the Petitioner had established a prima facie case.

1st, 2nd and 3rd Respondent’s submissions 16. The 1st, 2nd and 3rd Respondent’s Submissions are dated 2nd November, 2023 where they asserted that the ownership of the Original Title has been determined by the High Court, Court of Appeal and this Court severally. The 5th Respondent upheld the decisions of the court and confirmed the1st Respondent subdivision and sale of the land. Counsel relied on Amina Mohamed & 7 Others vs Chief of Embakasi Location & 2 Others (2005) eKLR, Zipporah Muthoni Ndungu & 5 Others vs National Bank of Kenya Limited & 12 Others (2021) eKLR and Mukuru Kwa Njenga Slum Residents & 12 Others vs Nairobi County Government & 13 Others (2022) eKLR).

17. Counsel submitted that the Petitioner had failed to impeach the Respondent’s title and ownership of the suit properties. The Titles presented by the Petitioner were fake and forged, with no evidence as to how the Petitioner acquired them. He submitted that it is not enough to wave a title deed and the Petitioner needed to demonstrate how it acquired the land, he elide on Kenya Anti-Corruption Commission vs Online Enterprises Limited & 4 Others (2019) eKLR. Further that seeking orders of the court on forged titles borders on contempt of court.

18. Counsel cited Giella vs Cassman Brown (supra) for the conditions of grant of a temporary injunction. He then argued that the conditions are separate hurdles an applicant must surmount them sequentially to succeed for the grant of an order of interim injunction (Nguruman Limited vs Jan Bonde Nielsen & 2 Others (2014) eKLR). He submitted that whereas the Petitioner had failed, the 1st -3rd Respondents had shown how the title was acquired by the 1st Respondent from National Bank in 1987 to the time of sale to the 3rd Respondent. The Petitioner had not therefore established any right over the suit property to entitle them to an order of injunction.

19. Counsel further submitted that the Petitioner had admitted that it is not in possession of the suit properties, thus there is no irreparable harm to be suffered that cannot be compensated by way of damages (Christopher Chepkiyeng vs Vincent Lelei & 3 Others (2021) eKLR). He concluded by submitting that since the Respondents have both title and possession of the suit properties, the balance of convenience tilts in their favour. He urged the court to dismiss the Application with costs.

4th respondent’s submissions 20. The 4th Respondent in its submissions dated 1st July, 2023 reiterated that it had not received or approved any applications for development permissions with respect to the suit properties. Under Section 57 of the Physical and Land Use Planning Act, the 4th Respondent would require the proponent of any project without requisite permissions to restore the land to its original condition. In addition, should the court determine that the developments are illegal, it has power to issue demolition orders thereto. Counsel however noted that the ownership of the suit properties was in dispute and the rights relating thereto yet to be determined (Kenleb Cons. Ltd vs New Gatitu Service Station Ltd & Another (1990) eKLR). The 4th Respondent submitted that the Petitioner had not made out a prima facie case, neither has it demonstrated that it will suffer any irreparable harm if the orders are not granted.

21. Counsel further noted that the 3rd Respondent had admitted to undertaking the construction works on the suit property without first obtaining the development permissions, which is unlawful under the Act and constitutes a crime punishable in law (Banis Africa Ventures Limited vs NLC (2021) eKLR and Said Ahmed vs Manasseh Benga & ANo. (2019) eKLR). The 3rd Respondent ought not be allowed to benefit from his illegal actions. During the pendency of the suit and it will be in the interest of justice to issue an injunction against further development on the suit properties. Counsel also submitted that there is no cause of action against it and its presence herein is not necessary for the adjudication of the dispute. Counsel urged the Court to dismiss the Application with costs against it.

6th Respondent’s submissions 22. The 6th Respondent also filed submissions dated 7th August, 2023 explaining the 6th Respondent’s mandate under Article 67 of the Constitution and, Section 5 and 6 of the National Land Commission Act. It therefore submitted that the present Petition and Application raises no cause of action to warrant issuance of orders against the 6th Respondent as sought by the Petitioner. The 6th Respondent is not the custodian of land documents and records as with regard to the subject properties. It cites the cases of In the Matter of the National Land Commission (2015) eKLR and Charles Mutuku v Christopher Nzioki & another (2020) eKLR. Consequently, Counsel submitted that the present Petition and Application against the 6th Respondent lacks merit and the same ought to be dismissed with costs to the Petitioner.

Issues for determination 23. I have carefully read and critically put into account all the filed pleadings, the written submissions, cited authorities relied on and the relevant provisions of the appropriate and enabling laws with regard to the instant application, I have framed the following salient issues for determination. These are: -a.Whether the Petitioner/Applicant is entitled to the orders sought in the application.b.Who shall bear the costs of the application?

Analysis and Determination A. Whether the Petitioner/ Applicant is entitled to the orders sought in the application. 24. The Petitioner/Applicant has sought numerous prayers in its application. The first substantive prayer sought is for an order of temporary injunction.

25. The guiding principles for the grant of orders of temporary injunction are well settled and are set out in the judicial decision of Giella Versus Cassman Brown (1973) EA 358. This position has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that:“in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”

26. Consequently, the Plaintiff ought to, first, establish a prima facie case. The plaintiff/Applicant submitted that they have established a prima facie case and relied on the judicial decision of Mrao Ltd Versus First American Bank of Kenya Ltd (2003) EKLR in which the Court of Appeal defined a prima facie case. The court stated that:“... in civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

27. Secondly, the Applicant has to demonstrate that irreparable injury will be occasioned to it if an order of temporary injunction is not granted. The decision in the case of Pius Kipchirchir Kogo Vs Frank Kimeli Tenai (2018) eKLR provides an explanation for what is meant by irreparable injury and it states that:“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.”

28. Thirdly, the Petitioner has to demonstrate that the balance of convenience tilts in their favour. In the case of Pius Kipchirchir Kogo Vs Frank Kimeli Tenai (2018) EKLR the court explained the meaning of balance of convenience as follows:“The meaning of balance of convenience in favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the Defendants. Should the inconvenience be equal, it is the Plaintiffs who will suffer.In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting it.”

29. In the case of Paul Gitonga Wanjau Vs Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR, the court dealing with the issue of balance of convenience expressed itself thus:-“Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.”

30. In the case of Amir Suleiman –vs- Amboseli Resort Limited [2004] eKLR the Learned judge stated that:“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”

31. The Petitioner/Applicant contends that the balance of convenience tilts in its favour because it the registered proprietor and has been in occupation of the suit properties for the past 7 years.

32. I need to emphasize that the court in deciding whether or not to grant an order of temporary injunction must consider the unique circumstances of each case.

33. The Court of Appeal in the Nguruman Ltd Case was emphatic that the three conditions set out in the Giella vs Cassman Brown case are separate distinct and logical hurdles which the applicant is expected to surmount sequentially in order to qualify for the grant of an order of an interlocutory injunction.

34. Having said so, I need to point out that the Petitioner’s application herein is premised on the Petition dated 11th April 2023. I have carefully read through the Petitioner’s application alongside the Petition. I am not persuaded that the Petitioner has successfully surmounted the 2nd condition of irreparable injury. It was incumbent upon the Applicant to demonstrate actual, substantial and demonstrable injury it stands to suffer and which cannot adequately be compensated by an award of damages.

35. The Petitioner seeks amongst other orders a declaration that the process of seeking building approvals by the 1st, 2nd and 3rd Respondents from the 4th Respondent is was unlawful, irregular and null and void ab initio. It prays that the approvals be quashed.

36. On that aspect, I need to state that the Physical Land Use Planning Act is very clear on how an aggrieved party should challenge issuance of building approvals by a County Government. The Petitioner has not preferred the reason why it has not followed that laid down statutory process.

37. Again, and from the affidavit filed on behalf of the 4th Respondent, the Nairobi City County Government, the deponent has categorically stated under oath that no such approvals have been issued. Where any person commences development without the necessary approvals, the County Government is authorized under the Physical Land Use Planning Act to take appropriate action. The Petitioner’s case is therefore premature, speculative and is not grounded on solid facts. In any event, there is a clear statutory mechanism established under the law which the Petitioner has not exhausted.

38. Further, a closer look at the other prayers in the Petition, especially prayer (e) in the Petition discloses that the Petitioner’s case is an ownership dispute that has been brought to court by way of a constitutional petition. Interestingly, no particulars of alleged violations of constitutional rights have been provided.

39. In the in celebrated case of Anarita Karimi Njeru -vs- Republic 1976-1980 KLR 1272 the court held that when a petitioner approaches the court for redress of a violation or alleged threat of violation of a constitutional right, he must with precision state the right, the provision of constitution under which that right is provided and the manner in which he alleges that the right to have been violated.

40. In the case Mumo Matemu -vs- Trusted Society for Human Rights Alliance & 5 Others [2013] eKLR, the court affirmed the position in the Anarita Karimi Njeru case and further observed that what is needed is not a formulaic approach to the drafting of the pleadings but that the claim of violation must be discernible from whatever pleadings have been placed before the court. The court stated as follows:“We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”

41. The court was emphatic on the consequences of a petition failing to meet the threshold. It stated that:“We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these shortcomings, it was not enough for the superior court below to lament that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting,” without requiring remedy by the 1st respondent.”

42. The balance of convenience too does not tilt in favour of the Petitioner.

43. Having wholesomely considered the Petitioner’s application, it is my considered view that it does not meet the threshold for the grant of an order of interlocutory application.

44. In regard to the other prayers sought against the Chief Land Registrar and the other Respondents, my findings are that they are pre-mature at this point in time. The Petitioner has not exhausted the provisions under the Civil Procedure Act and the Evidence Act as regards pre-trial directions, production, impounding and discovery of documents. The prayers are dismissed.

45. The upshot is that the Petitioner’s application dated 11th April 2023 is dismissed in its entirety. The costs of the application shall be in the cause.It is so ordered

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF DECEMBER 2023M. D. MWANGIJUDGEIn the virtual presence of:Ms. Chepwogen h/b for Mr. Maluki for the Petitioner/ApplicantMs. Odhiambo h/b for Mr. Bake for the 4th RespondentN/A for the 1st - 3rd & 5th - 7th RespondentsCourt Assistant – Yvette.M.D. MWANGIJUDGE