[2023] KEHC 25392 (KLR)

Ahmed & 2 others (Suing as the Officials of Langata Forest View Estate Association) v Khalif & 2 others (Being Sued in their Own Names and as Officials of Royal Park Home Owners Estate Association Langata) (Civil Case E102 of 2023) [2023] KEHC 25392 (KLR) (Civ) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25392 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E102 of 2023

AN Ongeri, J

November 17, 2023

Between

Abdulahi Dahir Sheikhy Ahmed

1st Plaintiff

Sahara Mohamed

2nd Plaintiff

Wilfred Odhiambo Apudana

3rd Plaintiff

Suing as the Officials of Langata Forest View Estate Association

and

Ibrahim Abdullahi Khalif

1st Defendant

Yunis Mohamed

2nd Defendant

Robbins Okemwa Nyandoro

3rd Defendant

Being Sued in their Own Names and as Officials of Royal Park Home Owners Estate Association Langata

Ruling

1. The application coming for consideration in this ruling is the one dated 22/5/2023 brought under Order 40 Rule 2, Order 51 Rule 1 of the Civil Procedure Rules, Sections 3, 3A and 63(e) of the Civil Procedure Act Cap 21, Article 159 of theConstitution and all other enabling provisions seeking for the following prayers:i.That the Application be certified as urgent and be heard in the first instance ex-parteii.That pending the hearing and determination of this Application the Defendants/Respondents be restrained, either by themselves, their agents, servants, representative and or any other person acting under their instructions howsoever from taking over the management of Langata Forest View Estate (also known as Royal Park Estate)iii.That pending the hearing and determination of this Application the Defendants/Respondents be restrained, either by themselves, their agents, servants, representatives and/or any other person acting under their instructions howsoever from harassing, intimidating, threatening or assaulting the employees of the Plaintiff Applicantiv.That pending the hearing and determination of this Application the Defendants/Respondents be restrained, either by themselves, their agents, servants, representatives and/or any other person acting under their instructions howsoever from harassing, intimidating, threatening the employees of the Plaintiff Applicant.v.That pending the hearing and determination of this suit the defendants/respondents be restrained, either by themselves, their agents, servants, representatives and/or any other person acting under their instructions howsoever from interfering in any way or manner with the management of Langata Forest View Estate Association.vi.That pending the hearing and determination of this suit the defendants/respondents be restrained, either by themselves, their agents, servants, representatives and/or any other person acting under their instructions howsoever from taking over the management of Langata Forest View Estate (also known as Royal Park Estate).vii.That pending the hearing and determination of this application the defendants/respondents be restrained, either by themselves, their agents, servants, representatives and/or any other person acting under their instructions howsoever from interfering in any way or manner with the management of Langata Forest View Estate Association.viii.That the Officer Commanding Station, Langata Police Station do ensure compliance with the orders of the court.ix.That costs of this application be in the cause.

2. The application is based on the following grounds:i.That the plaintiff/applicant is a registered residential association comprising of more than 415 members who are home owners at Langata Forest View Estate (also known as Royal Park Estate) located in Langata within Nairobi County. The plaintiff/applicant represents its members for common purposes such as providing security, maintenance, repairs and improvements of all common areas and facilities within the estate.ii.That a proper 21 day notice having been issued on 30th December 2022, on 22nd January 2023, members of the plaintiff/applicant conducted elections to elect new officials. The defendants/respondents being dissatisfied with the results of the elections wrote to the registrar of societies complaining, their concerns were dismissed by the registrar for lacking basis.iii.That subsequently, the defendants/respondents registered Royal Park Home Owners Estate Association Langata which has less than 16 members meant to take-over illegally the management of Langata Forest View Park Association (also of Royal Park Estate) from the plaintiff/applicant.iv.That using registered Royal Park Home Owners Estate Association Langata the defendants/respondents attempted to illegally and forcefully take over management of Langata Forest View Park Association (also of Royal Park Estate) which resulted in destruction of property, assault and grievous bodily harm of the guards on duty on the fateful night.v.That the defendants/respondents have gone ahead and opened a new account which is being used to deceive members of the plaintiff/applicant to pay their subscription fees. Further, the defendants/ respondents have made it extremely difficult for the plaintiff/applicant to effectively manage the estate and spreading allegations that it is the legitimate association representing interests of the residents at Langata Forest View Park Association (also of Royal Park Estate)vi.That the defendants/respondents actions have created tension within Langata Forest View Park Association (also of Royal park Estate) the police have declined to take any action on the basis that the defendants/ respondents have their own association.vii.That the police advised the plaintiff/applicant that they have little to do and the only remedy is to seek redress of this honourable court to issue orders restraining the defendants/ respondents from managing the estate as the dispute on who is the legitimate association is ventilated.viii.That unless the defendants/respondents are restrained the plaintiffs/applicants the personal security, interests and rights of the members of the plaintiffs/applicants will be adversely affected.ix.That it will be therefore be in the interest of justice, equity and conscience that the orders sought in the plaintiffs/applicants’ application are granted.

3. The application is supported by the affidavit of Michael Wachira Mutahi sworn on 22/5/2023 in which it is deponed that on 30/12/2022 the association issued a 21 day notice, notifying its members that elections of its officials would be conducted on 22/1/2023. On the day of election the following officials were elected into office;a.Chairperson – Abdulahi Dahir Sheikh Ahmedb.Deputy Chairperson – Micah Bittok Bosinc.Secretary – Sahara Mohamedd.Treasurer – Wilfred Odhiambo Apinda

4. The respondents being dissatisfied with the elections wrote to the registrar of societies vide a letter dated 30/1/2023 objecting to registration of new officials. The registrar considered the complaint and found it lacking in merit and dismissed the same on 5/4/2023.

5. On 6/4/2023 the respondents registered a parallel association in the name of Royal Park Home Owner Estate Association Langata which has less than 16 members meant to illegally take over management of Langata Forest View Park Association (also of Royal Park Estate). The officials of the new association were the same as the individuals who lodged the complaint.

6. He deponed that the respondents damaged property, assaulted and attacked the night guards employed by the applicant causing grievous bodily harm. The respondents have further gone ahead and opened a new account which is being used to deceive members of the applicant to pay their subscription fees. The respondents have made it extremely difficult for the applicant to effectively manage the estate and spreading the allegation that they are the legitimate association representing interests of the residents at Royal Park Estate while providing no services in the Estate.

7. He indicated that that the respondents continue to trespass and threaten the applicant’s security guards who are on duty of the fateful day in order to silence them which reports were made to the police and entered in the occurrence book under OB 13/04/05/2023. Unless the respondents are urgently restrained the applicant’s security, interests and rights of the members of the applicant will be adversely affected.

8. The applicants filed a further supplementary affidavit sworn on 23/6/2023 and deponed that land reference title number 19952 in the Langata Forest View Estate which is also known as Royal Park Estate which was registered in 2014 and is comprised of more than 415 members who own homes and reside within the estate. That 289 members attended the elections held on 22/1/2023. At no time has the respondent raised complaint with the association. The respondent had a chance to participate in the election leadership but after they lost the elections resorted to registering a parallel association.

9. He indicated that upon visiting the office of the registrar he was informed that the respondents have been issued with notification of intended cancelation of registration on the basis that continued registration prejudices peace and security. The respondents are hell bent to unlawfully take over management of the estate in order to further their selfish agenda while causing destruction of property mayhem and security breaches within the estate.

10. The respondents filed a replying affidavit sworn on 31/5/2023 by Ibrahim Abdullahi Khally in which he stated that he is an official of the royal park home owners estate association Langata whose membership comprises of residents/owners of house within royal park estate in Langata. The royal park estate originated from the subdivision of what was originally Land reference number 19952 which subdivision resulted in more than 750 residential plots.

11. The respondent’s membership compromises of likeminded homeowners who no longer wish to be associated with or had never joined the applicant in the first place in exercise of the constitutional rights and freedom of association. The Respondent has a mandate to govern the welfare of its members within the "Royal Park Estate" and who have never assented to the purported change of the estate's name to ‘'Langata Forest View Estate" by the Applicant, especially given that there already exists an estate by the same name within the Langata area consequently, the change in the name of the estate will only create confusion.

12. He further stated that the respondent has never attempted to take over the affairs of the applicant or interfere with the applicant members, save for those who willingly join the respondent. In retaliation to the formation of the Respondent Association, the Applicant has resorted to among others, harassing the members of the Respondent by intimidating their tenants, chasing away their construction workers and calling county government officers to stop ongoing construction despite having procured necessary approvals all of which has resulted in hostilities within the estate.

13. The respondents also filed a further supplementary replying affidavit sworn by Ibrahim Abdullahi Khalif on 2/10/2023 in which he stated that the applicants in their supplementary affidavit dated 23/6/2023 annexed documentation obtained from the registrar of societies and addressed to their society and the director of criminal investigations, which information is confidential and privileged and ordinarily could not be accessible to third parties. the manner in which the documents were accessed or given to the applicants is suspect and smacks of collusions between the applicant and the registrar of societies.

14. The parties filed written submissions as follows; the applicant submitted on prima facie case that it is a registered residential association registered on 22/7/2014. The Applicant has been uninterruptedly managing the affairs of the Estate until 6/4/2023 when the Respondents registered a parallel association which is a vehicle being used to take over the management of the estate from the Applicants. The actions of the Respondents prejudices security and peace of the Estate causing confusion, violence, destruction of property, mayhem and security breaches within the Estate. This is evident from the attacks on the guards of the Plaintiff/ Applicant which caused them grievous bodily harm.

15. On irreparable injury/loss the applicant submitted that the orders sought are not granted, members of the applicant will suffer irreparable injury of their security being breached and their property which they have invested in heavily being destroyed. The objectives of the applicant is to represent its members before the Government and other authorities for any common purpose as well as provide security, maintenance, repair, replacement or improvements of all common areas and facilities within the estate to ensure habitable living standards. This is the mandate the applicant has been doing since the year 2014. It is notable that since 2014, the residents living in the Estate have lived peacefully and in harmony until the recent formation of a parallel association.

16. On balance of convenience the applicant submitted that if the injunction is not granted, it will inflict greater hardship whereby the residents of the association will be charged by the respondents but not provided with any services. The security of all the members will be prejudiced and destruction of property of the residents occasioned.

17. The respondent on the other hand submitted that both the applicant and respondent are duly registered under the Societies Act each with a mandate to attend to the welfare of their respective members. Article 36 (1) and (2) of the Constitution does indeed guarantee each Citizen the freedom of association and further affirms that a person cannot be compelled to join any association. No evidence has been adduced before this Court to prove that the officials and/or agents of the Respondent Association have attempted to interfere or take over the affairs of the Applicant Association or that there were acts of violence perpetrated by the Respondent's Agents.

18. The respondents submitted that if the prayer sought herein are granted it would prevent the respondent from serving its member’s needs and it would thus be an infringement on the exercise of their constitutional rights and freedoms. It was their argument therefore that the applicant has failed to establish a prima facie case as the respondent has proven that the balance of convenience tilts in its favor as it and the member stand to suffer immeasurable loss and damage should the court allow the application as is.

19. The issues for determination in this application are as follows;i.Whether the applicants are entitled to the interlocutory injunction they are seeking against the respondents.ii.Who pays the costs of this application?

20. On the issue as to whether the respondents established grounds for the grant of an interlocutory injunction, the guiding principles for the grant of orders of temporary injunctions are well settled and are set out in the judicial decision of Giella Versus Cassman Brown (1973) EA 358.

21. In that case, it was stated as follows as follows;“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience. (EA Industries v Trufoods, [1972] EA 420. )”

22. I find that the injunctions the Applicants are seeking can only be granted in a very clear case.

23. In the case of Shariff Abdi Hassan Vs Nadhif Jama Adan [2006] eKLR the court stated as follows;“The courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.”

24. To grant the said injunctions at this stage would be to determine the case at interlocutory stage without according the parties a chance to be heard on merit.

25. On the issue as to whether plaintiffs are harassing the defendants, I find that the same does not fall for consideration before this court since the same amount to criminal activities within the mandate of DCI to investigate and take action against offenders.

26. I find that the application dated 22/5/2023 lacks in merit and the same is dismissed.

27. On the issue of costs, I direct that the same to abide the case.

28. The defendants are directed to file and serve their statement of defence.

29. This case will be mentioned on 4/12/2023 before the Deputy Registrar for the pretrial conference and for a hearing date.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. A. N. ONGERIJUDGE