[2020] KEELC 3949 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO. 81 OF 2017

ALI ABDALLA ALIaliasALI SKANDA......................PLAINTIFF/APPLICANT

VERSUS

1. ABDULHAKIM MOHAMED ALI

2. ADAN MAALIM HUSSEIN

3. ALI OBO

4. SAID MUHIBU ATHUMANI

5. MURAMBA MWATSUMA...........................DEFENDANTS/RESPONDENTS

RULING

1. By his Notice of Motion application dated 7th April 2017, Ali Abdalla Ali also known as Ali Skanda (the Plaintiff) prays for temporary orders of injunction to restrain the five (5) Defendants from developing, transferring, sub-dividing, alienating, charging and/or dealing in any way with an unsurveyed parcel of land said to be measuring ten acres and located at Kililana(A) Lamu West Sub-County within Lamu County, pending the hearing and determination of this suit.

2. The application which is supported by an Affidavit sworn by the Plaintiff is based on the grounds that:

i) The Plaintiff is the legal owner of the said parcel of land which the Defendants now claim to have purchased;

ii) The Defendants descended on the suit property and demolished the Plaintiff’s house and have now commenced constructing a fence and other temporary structures thereon; and

iii) It is in the interest of justice that the orders sought herein be granted.

3. The application is opposed. In a Replying Affidavit sworn on their behalf by their Advocate Yusuf M. Aboubakar, the 1st to 4th Defendants assert that the disputed parcel of land belongs to themselves and not the Plaintiff. It is their case that the dispute herein was on 16th April 2015 referred to village elders who resolved that the Plaintiff and his family do occupy one half of the property while the Defendants were to occupy the other half.

4. The 1st to 4th Defendants further aver that sometime on 3rd June 2015, the Plaintiff started encroaching on the portion of land awarded to the Defendants by the said Village Elders and this prompted the Provincial Administration and the County Government to intervene and caution the Plaintiff. The Defendants aver that they have only fenced off the portion awarded to them by the elders and not the portion belonging to the Plaintiff.

5. In addition the Defendant assert that the Plaintiff’s suit is incompetent for the reasons that:-

(i) The disputed land is unalienated public land and that by virtue of Article 67(2) (a) of the Constitution of Kenya, and Section 5(1) (a), 2(b) (d), 3 and 6 of the National Land Commission Act, it is only the Commission which can assist the Court to determine the Plaintiff’s case.

(ii) The Plaintiff’s claim is not recognised by Section 5 of the Land Act 2012 and therefore cannot be adjudicated by this Court without the input of the National Land Commission; and

(iii) The Plaintiff has not alleged to have acquired the disputed parcel of land under any of the methods recognised by Section 7 of the Land Act 2012 and therefore cannot sustain his claim herein.

6. I have perused and considered the application and the response thereto. I have equally considered the submissions and authorities placed before me by the Learned Advocates for the parties. The Defendant did not file any response to the application.

7. The power to grant an interlocutory injunction such as the one sought herein lies in the discretion of the Court. It is now settled that before granting such an injunction, the Court must consider the following:-

a) Whether the applicant has demonstrated a prima facie case with a probability of success;

b) Whether the applicant is likely to suffer irreparable harm if the injunction is not granted; and

c) Where the Court is in doubt, it will decide the same on a balance of probabilities.

8. In Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others (2003) KLR 125, the Court of Appeal in defining a prima facie case held 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….”

9. In the matter before me, the Plaintiff avers in his Supporting Affidavit that he settled on the suit property before the year 2002 and that he has been cultivating and developing the same. It is his case that the 5th Defendant who used to be his neighbour sold his parcel on 3rd July 2012 and that the said 5th Defendant has now encroached on his property with the 1st to 4th Defendants claiming ownership thereof.

10. As it were the Plaintiff does not explain under what circumstances he came to settle on the property in the year 2002. He does not state whether it was by virtue of inheritance, allocation by the Government or purchase. While he claims that the disputed portion of land measured ten acres, it is also his case that the land is unsurvyed and it was not clear to me how he came to ascertain boundaries of his alleged parcel of land and that of the Defendants and/or other neighbours.

11. As was stated by the Court of Appeal in Nguruman Ltd –vs- Jan Bonde Nielsen & 2 Others (2014) eKRL:-

“…..The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion……”

12. In the matter before me, it was not immediately clear to me what rights the Plaintiff had over the disputed parcel of land. From the material placed before me, it was clear that the dispute between the parties began as far back as the year 2012 and that the land in dispute is unalienated Government land in the area known as Kilalana in Lamu County.

13. In the circumstances, I was not persuaded from the material presented before me at this stage that the Plaintiff has any clear and unmistakable rights to the disputed property capable of being protected in the manner sought herein.

14. Accordingly I did not find any merit in the Motion dated 7th April 2017. The same is dismissed with costs to the Defendants.

Dated, signed and delivered at Malindi this 23rd day of January, 2020.

J.O. OLOLA

JUDGE