[2021] KEELC 1145 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT ELDORET

ELC NO. E024 OF 2021

ALFRED KIPSABUL ...........................................................................................1ST PLAINTIFF

URBANO MELI....................................................................................................2ND PLAINTIFF

VERSUS

SIMION LANGAT..............................................................................................1ST DEFENDANT

JOSEPH NGOBIRO.........................................................................................2ND DEFENDANT

ELIM EBEI........................................................................................................3RD DEFENDANT

THOMAS CHESEREM....................................................................................4TH DEFENDANT

JOSEPH MONG’ONY......................................................................................5TH DEFENDANT

THE COUNTY LAND SURVEYOR UASIN-GISHU COUNTY.................6TH DEFENDANT

THE LAND SETTLEMENT FUND TRUSTEE............................................7TH DEFENDANT

THE ATTORNEY GENERAL.........................................................................8TH DEFENDANT

RULING

1. The 1st Plaintiff/Applicant filed a Notice of Motion dated 12th April 2021 in which the Applicant seeks the following orders: -

a)That this application be certified as urgent and service of the same be dispensed with in the first instance.

b)That temporary orders of injunction do issue restraining the Defendant/Respondents, their servants, agents and/or assigns in any way from dealing, erecting illegal structures, cultivating and/or interfering with the Plaintiffs/Applicants quiet possession, use and/or enjoyment and whatsoever stop any act that is inconsistent with the 1st Plaintiff/Applicant’s right as the registered owner of those land parcels UASIN-GISHU/KAHUNGURA/220,UASIN-GISHU/KAHUNGURA/ 221, UASIN-GISHU/ KAHUNGURA /222,pending the hearing and determination of this application inter-parties.

c)That the Honourable Court be pleased to restrain the 4th and 5th Defendants/Respondents from re-establishment of Road access on the Plaintiffs/Applicants parcel of land namely UASIN-GISHU/KAHUNGURA/220,UASIN-GISHU/KAHUNGURA /221,UASIN-GISHU/KAHUNGURA/222,pending the hearing of this application.

d)That the Honourable Court be pleased to issue an order against the Defendants/Respondents compelling them to remove the illegal structures, construction and/or carrying out any operations on the Plaintiff’s suit land namely UASIN-GISHU/KAHUNGURA/220,UASIN-GISHU/KAHUNGURA /221, UASIN-GISHU/ KAHUNGURA /222,

e)That Wauni for Police Station to ensure compliance of the orders issued herein.

f)That the costs of the application be on the cause.

2. The 1st Applicant is the registered owner of LR NOS UASIN-GISHU/KAHUNGURA/220, 221 and 222 (Suit Properties). The 1st Applicant contends that the 1st to 5th Defendants/Respondents have without any justifiable reason laid claim to ownership of the suit properties and have started erecting structurers on the suit properties without his consent or authority.

3. The 1st Applicant states that the 6th Respondent has communicated his intention of re-establishing a road of access passing on the suit properties without telling him the preconditions of carrying out the exercise. It is on this basis that the 1st Applicant is seeking an order of injunction restraining the Respondents from laying any claim to the suit properties and for an order of demolition of the structures which have been erected thereon.

4. The 1st Respondent has opposed the Applicant’s application based on a replying affidavit sworn by on 26th April, 2021. The 2nd to 5th Respondents have associated themselves with the contents of the 1st Respondent’s affidavit. The 1st to 5th Respondents contend that the 1st Applicant is guilty of non-disclosure of material facts. They contend that the 1st Applicant has failed to inform the court that he is the one who petitioned the 6th Respondent through the area Chief to go and re-establish the road of access. The 6th Respondent duly complied and moved to the ground and re-established the access road as it should be.

5. The 1st Applicant was not satisfied with the re-establishment hence the filing of this suit. The 1st to 5th Respondents contend that if the 1st Applicant was not satisfied with what the 6th Respondent did, he should have engaged his own surveyor to carry out the work instead of bringing up a suit and an application which does not meet the threshold for grant of an injunction.

6. The parties were directed to file written submissions. The Applicants filed their submissions dated 1st July, 2021. The 1st to 5th Respondents filed their submissions dated 23rd June, 2021. I have considered the Applicants’ application together with the opposition thereto by the 1st to 5th Respondents. I have also considered the submissions filed. The only issue for determination is whether the Applicants have met the threshold for grant of either a temporary or mandatory injunction as prayed for.

7. To begin with, the 1st Applicant did not disclose that he is the one who petitioned the 6th Respondent through the area chief to come and re-establish the boundaries of the road of access. The 6th Respondent re-established the boundaries as requested and it is therefore ironical for the 1st Applicant to claim that he had been notified of an intended re-establishment of the road of access without disclosure of the pre-existing conditions for the exercise.

8. The 1st Applicant has made general allegations against the Respondents. There is no issue of ownership dispute over the suit properties. The road of access was re-established as per the request of the 1st Applicant. If there is any construction of structures being put up by the Respondents, those structures must be within the boundaries as set out by the 6th Respondent unless the 1st Applicants demonstrate otherwise which they have not done.

9. The principles for grant of a temporary injunction are well set out in the case of Giella =vs= Cassman Brown & Co. Ltd [1973] EA 358. First an Applicant must demonstrate that he has a prima facie case with probability of success. Second, an injunction will not be granted unless the Applicant is likely to suffer loss which will not be compensated in damages. Third, if the court is in doubt, it will decide the application on a balance of convenience.

10. In the case of Mrao Ltd =vs= First American Bank of Kenya Ltd & 2 others [2003] eKLR, the Court of Appeal defined a prima facie case as follows: -

“a prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

11. I have looked at the materials placed before me. The materials clearly show that the 1st Applicant has not demonstrated that he has a prima facie case with probability of success. Even on consideration of whether the damages should be adequate compensation should he succeed in the case, it is clear that the encroachment he alleges is capable of being valued and he will be compensated or in other words, if the re-established access road is found not to have been correctly re-established the same can always be reverted to the right place and any damage caused will be compensated for purposes of restoration to the original status of the suit property.

12. The allegations by the 1st Applicant are not clear and no mandatory injunction can be granted at this interlocutory stage. The court is not in doubt as to call for the determination of the application on a balance of convenience. The upshot of this is that the 1st Applicants’ application fails. The same is dismissed with costs to the 1st to 5th Respondents.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 4TH DAY OF NOVEMBER, 2021.

E.O. OBAGA

JUDGE

IN THE VIRTUAL PRESENCE OF: -

MR. OMBOTO FOR APPLICANT

1ST DEFENDANT IN PERSON

COURT ASSISTANT – MERCY

E.O. OBAGA

JUDGE