[2021] KEELC 4453 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 113 OF 2019

ALI ABDI ALI (Chairman suing on behalf of

KALOLENI WELFARE SOCIETY)...............PLAINTIFF/RESPONDENT

VERSUS

RHINE FORWARDERS LTD..................1ST DEFENDANT/APPLICANT

SAMMY MUTHUSI (Chairman,

MAKIME SELF HELP GROUP)........2ND DEFENDANT/RESPONDENT

RULING

1. In the Notice of Motion dated 18th October, 2019, the Plaintiff has sought for the following orders:

(a) That this Honourable Court be pleased to issue a temporary injunction restraining the Defendants by themselves, servants, legal representatives, agents or howsoever from entering into, blocking agents, selling, constructing and/or in any other manner interfering withPlot L.R. No. 31990 (formerly Uns. Agricultural Plot No. “D”-Athi River) situate in Athi River, Machakos pending the hearing and determination of this suit.

(b) That the OCS Mlolongo Police Station and the in charge Mlolongo Administration Police Camp do ensure compliance with the orders above.

(c) Thatthe costs of this Application be in the cause.

2. The Plaintiff is supported by the Affidavit of the Plaintiff who has deponed that he is the Chairman of Kaloleni Welfare Society; that Kaloleni Welfare Society is a duly registered Society under the Societies Rules, 1968 and that on 24th February, 1997 Kaloleni Welfare Society was allotted Plot L.R. No. 31990 (formerly Uns. Agricultural Plot No. “D”-Athi River) vide a Letter of Allotment Ref. No. 33745/XXII.

3. It was deponed by the Plaintiff that Plot L.R. No. 31990 (formerly Uns. Agricultural Plot No. “D”-Athi River) was surveyed and a Deed Plan issued for further distribution to the members of the Society; that on 17th October, 2018, the Plaintiff was issued with a Certificate of Titles for L.R. No. 31990 and that the Society has been paying all the requisite payments including land rates to the County Government of Machakos as well as the Ministry of Lands.

4. It was deponed that some of the Society’s members have already built and settled on the said parcel of land; that on 18th September, 2019, they went on the ground to do further sub-divisions and allocation of the land to their members but some people, who alleged to be the agents of the Defendants, attacked them and threatened to demolish the already existing structures, claiming that the Defendants were the owners of the suit property.

5. The Plaintiff deponed that at the moment, there is a lot of tension on the ground because the Defendants have promised to go back with a large group of young men armed with bows and arrows to invade the property and that they are apprehensive that there might be further interference and or threats from the Defendants.

6. It was deponed that the continued interference of the suit property by the Defendants is unlawful and the same constitutes illegal trespass and an affront of their constitutional right to peaceful and quiet possession of the suit property and that there is a real danger of a total breach of peace if the Defendants and their agents continue arming themselves with crude weapons with a view to dispossess them of the suit property unlawfully and without any legal basis.

7. The Plaintiff lastly deponed that it is only in the interest of justice that the orders sought herein be granted in order to preserve peace and tranquillity pending further orders from this Honourable Court.

8. The 1st Defendant filed a Notice of Preliminary Objection and Grounds of Opposition in which it averred that there is no existing Society in the name of Kaloleni Welfare Society; that a non-existent Society cannot purport to hold or possess property and that the so called Kaloleni Welfare Society does not have capacity to file this suit.

9. In the Notice of Preliminary Objection dated 27th November, 2019, the 1st Defendant averred that the Plaintiff’s suit should be struck out on the ground that there is no Society known as Kaloleni Welfare Society.

10. In his Replying Affidavit, the 1st Defendant’s Director deponed that the 1st Defendant is the legal and registered owner of land known as L.R. No. 24625 (a sub-divided portion of Uns. Agricultural Plot No. ‘D’-Athi River); that the 1st Defendant is in full occupation of the said land and that the 1st Defendant has constructed permanent structures on the land.

11. According to the 1st Defendant’s Director, the Plaintiffs have on numerous occasion used armed gangs with unidentified police officers to harass the 1st Defendant and that on 2nd December, 2018 at mid night, the said gang demolished the perimeter fence and one of the permanent residential structures which has been rented out.

12. According to the 1st Defendant’s Director, there exists in the Chief Magistrate’s Court Milimani SPMCC No. 9515 of 2018 and 10797 of 2018 which suits are in respect to the suit property and that the said suits are still pending.

13. The 1st Defendant’s Director filed a Further Affidavit in which he deponed that after making inquiries at the Registrar of Societies, it has become apparent that the Plaintiff’s Society does not exist and that the 1st Defendant managed to get confirmation from the Land’s office showing that the alleged receipt issued to the Plaintiff on 14th May, 2018 does not appear in their records.

14. According to the 1st Defendant’s Director, the 1st Defendant also obtained a letter dated 8th October, 2018 by the Director of Surveys addressed to the Director of Land Administration recalling the Plaintiff’s Deed Plan Number 424486 for L.R. No. 31990 because it overlaps on other surveyed plots represented in survey plan number F/R No. 360/116 and that the said Deed Plan is not genuine.

15. It was deponed that the above demonstrates the Plaintiff’s concerted efforts with the officials at the Ministry of Lands to deprive the 1st Defendant the suit property by falsifying documents and records and that the Certificate of Title produced by the Plaintiff is a forgery or acquired through dubious means with the sole intention of defrauding the 1st Defendant of its land.

16. The 1st Defendant’s Director deponed that on 5th August, 2020, their advocate wrote to the Directorate of Criminal Investigations and lodged a complaint in respect of the suit property; that the OCPD Athi River Police Sub County and the OCS of Mlolongo Police have been working very closely with the Plaintiff with the sole intention of assisting him to evict the 1st Defendant’s members who were living on the suit property and that the Plaintiff has been abusing the interim orders that were issued by this court on 29th October, 2019.

17. The Plaintiff filed a Supplementary Affidavit in response to the issues raised by 1st Defendant’s Director in the Further Affidavit. The Plaintiff deponed that their Society was registered on 12th February, 2007 under the Societies Act vide Number 16343; that on 24th February, 2020, the Registrar of Societies confirmed that position to the Director of Criminal Investigations and that the Society has more than 300 members.

18. The Plaintiff deponed that the land in question belongs to their Society; that the land the 1st Defendant is claiming is different from their land which is located at a different area and that the L.R. No. 24628 is located at Mulinge Scheme which is far from the location of the suit property. The Plaintiff’s and the 1st Defendant’s advocate filed brief submissions which I have considered.

19. The Plaintiff in this matter is seeking for injunctive orders restraining the Defendants from entering into, blocking agents, selling, constructing and/or in any other manner interfering with Plot L.R. No. 31990 (formerly Uns. Agricultural Plot No. “D”-Athi River) situate in Athi River, Machakos pending the hearing and determination of this suit.

20. The conditions that have to be fulfilled before the court can exercise its discretion to grant a temporary injunction have been well laid out as follows: The Applicant has to show a prima facie case with a probability of success; the likelihood of the Applicant suffering irreparable damage which would not be adequately compensated by an award of damages and where the court is in doubt in respect of the two considerations, then the Application will be decided on a balance of convenience (See Giella vs. Cassman Brown & Co. Ltd (1973) EA 358 andFellowes and Son vs. Fisher [1976] I QB 122).

21. In the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 others [2014] eKLR,the Court of Appeal held as follows:

“The party on whom the burden of provinga prima faciecase 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. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title. it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities…”

22. What amounts to a prima facie case, was explained by the Court of Appeal in Mrao vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 case as follows:

“...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 right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

23. The 1st Defendant has alleged that the Plaintiff’s Society does not exist. The 1st Defendant annexed on its Further Affidavit a letter dated 20th November, 2019 in which the Assistant Registrar of Societies informed them as follows:

“I wish to inform you that the above mentioned society (Kaloleni Welfare Society) is not listed in our data base.”

24. The said Registrar went further to inform the 1st Defendant that the number that appears on the Plaintiff’s Certificate of Registration, being 16343 belongs to a different Society known as Musanda Holy Ghost Church E.A. South Nairobi which was registered on 25th August, 1994. The said Certificate of Registration in favour of Musanda Holy Ghost Church was attached on the 1st Defendant’s Affidavit.

25. In response to the allegation that the Society does not exist, the Plaintiff annexed on his Affidavit a letter dated 24th February, 2020 authored by aSenior State Counsel working in the office of Registrar of Companies, and addressed to the Director of Criminal Investigations. The said letter was in response to the letter dated 2nd October, 2019 by the Director of Criminal Investigations in which the Director of Criminal Investigations had inquired about the legal status of the Society.

26. In her letter dated 24th February, 2020, the Senior State Counsel informed the Director of Criminal Investigations as follows:

“This is to confirm that Kaloleni Welfare Society is legally registered in our office.”

27. Considering that the Plaintiff has exhibited a letter dated 24th February, 2020 in which a senior member of staff in the Registrar of Companies has allegedly stated that the Society exists, it is my finding that the issue of the existence of the Plaintiff’s Society or otherwise can only be determined at the hearing of this suit, and not at this stage.

28. According to the Plaintiff, Kaloleni Society Welfare Society (the Society)was registered on 12th February, 1997. After the said registration, it is the Plaintiff’s case that it was issued with a Letter of Allotment dated 24th February, 1997 for“Uns. Agricultural Plot No. ‘D’- Athi River”.The Certificate of Registration of the Society and the Letter of Allotment has been annexed on the Plaintiff’s Affidavit.

29. It was the Plaintiff’s case that a Deed Plan number 424486 was prepared in favour of the Society on 28th September, 2018, and a Certificate of Title was then issued to the Society, through its members on 17th October, 2018. The Certificate of Title for L.R. No. 31990 measuring 67. 01 Ha together with the Deed Plan was annexed on the Plaintiff’s Affidavit.

30. On the hand, it is the 1st Defendant’s case that it owns land known as L.R. No. 24625 which is the same land that the Plaintiff is claiming. The Plaintiff exhibited the title for the said land. In his Further Affidavit, the 1st Defendant produced a letter dated 8th October, 2018 in respect of the Plaintiff’s Deed Plan number 424486, L.R. No. 31990 (New Grant) by the Director of Surveys addressed to the Director of Land Administration in which he stated as follows:

“Kindly note that we sealed and issued Deed Plan No. 424486 after your indenting for L.R No. 31990 vide our letter Ref: No. CT 221/Vol. 105/87 dated 28th September, 2018.

We have since noted that the parcel overlaps on another survey plots as represented on F/R No. 360/116 as LR Nos. 24625-24636 for which deed plan numbers 234809-234818 were issued on 26th June, 2001.

We therefore wish to recall deed plan No. 424486 pending confirmation of registration of the above mentioned parcels to avoid existence of multiple records for the same piece of land.”

31. The Plaintiff has not exhibited any evidence to show that the letter dated 8th October, 2018 recalling their Deed Plan number 4244486 – L.R. No. 31990 did not emanate from the office of the Director of Surveys. In the said letter, the Chief Land Registrar was advised to ‘pend registration of L.R. No. 31990 until registration of L.R. Nos. 24625-24636 is verified.’

32. It would appear that despite the Director of Surveys advising the Chief Land Registrar not to register L.R. No. 31990 due to the overlap of its survey on other parcels of land, including L.R. No. 24625 which was registered in favour of the 1st Defendant on 22nd September, 2004, the Chief Land Registrar went ahead to register L.R. No. 31990 in favour of the Plaintiff’s Society on 12th February, 2019 as IR 198861/1.

33. Indeed, L.R. No. 24625 was registered in favour of Cranga Company Limited on 16th January, 2003 way before the Deed Plan for L.R. No. 31990 was prepared. The said land was then transferred to the 1st Defendant 22nd September, 2004.

34. The 1st Defendant’s title was therefore the first one in time, and the same has never been nullified either by the court or the Chief Land Registrar. According to the Director of Survey’s letter, the survey of the Plaintiff’s title was done much later, and on ‘top’ of the already existing surveys and titles, including the 1st Defendant’s title for L.R. No. 24625.

35. The title that was issued to the 1st Defendant in the year 2004 was registered under the Registration of Titles Act which was repealed in the year 2011. The said title is therefore governed by the repealed Act. Section 23 of the Registration of Titles Act (repealed) provides as follows:

“The Certificate of Title issued by the Registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.”(my emphasis)

36. While interpreting the provisions of Section 23 of the Registration of Titles Act (repealed), the Court of Appeal stated as follows in the case of Caroget Investment Limited vs. Aster Holdings Limited & 4 others [2019] eKLR:

“This Section has been the subject of interpretation in numerous cases. It gives an absolute and indefeasible title to the owner of the property. This presumption of indefeasibility and conclusiveness of title is rebuttable only by proof of fraud or misrepresentation, and only if it is proved that the buyer was involved in such fraud or misrepresentation. It has also been observed by the cases that the land registration system in Kenya is largely a product of the Torrens system of registration – a system which places premium on the accuracy of the land register and insists that the register must mirror all registrable interests affecting land; that the Government, as the keeper of the master record of all land and their respective owners, guarantees the accuracy of that record and assures all of the indefeasibility of the rights and interests shown in the register against the entire world.”

37. The title that was issued to the 1st Defendant in the year 2004 for L.R. No. 24625 gives it absolute and indefeasible title to the land. This presumption of indefeasibility and conclusiveness of title is rebuttable only by proof of fraud or misrepresentation which has not been alluded to in the Plaint or at all.

38. The 1st Defendant’s title was first in time, and takes precedence over any title that may be issued in respect of the same land subsequently. This is the position that was taken by Lenaola J., (as he was then) in Gitwany Investment Limited vs. Tajmal Limited and 3 others [2006] eKLR, where he held as follows:

“…Like equity keeps teaching us, the first in time prevails so that in the event such as this one where, by a mistake that is admitted, the Commissioner of Lands issues two titles in respect of the same parcel of land, then if both are apparently and on the face of them, issued regularly and procedurally without fraud save for the mistake, then the first in time must prevail. It must prevail because without cancellation of the original title, it retains its sanctity.”

39. Therefore, even if it is argued that the title that was issued to the Plaintiff was issued legally by the Chief Land Registrar, which is doubtful in view of the letter by the Director of Surveys dated 8th October, 2018, the 1st Defendant’s title which was the first in time takes priority over the Plaintiff’s title which was issued in the year 2018. It is the 1st Defendant who is in possession of the land, and is entitled to the land pending the hearing of the suit.

40. For the reasons I have given above, it is my finding that the Plaintiff has not established a prima facie case with chances of success. The Plaintiff’s Application dated 18th October, 2019 is dismissed with costs to the 1st Defendant.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF JANUARY, 2021.

O.A. ANGOTE

JUDGE