[2018] KEELC 2455 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC 133 OF 2015 (OS)

ALI MOHAMED MUSA & 6 OTHERS...PLAINTIFFS/RESPONDENTS

-VS-

MAHMOOD HASSAM & 4 OTHERS.…DEFENDANTS/APPLICANTS

RULING

1. The Applications under consideration are the Notice of Motion dated 22nd March 2018 and the Notice of Motion dated 10th April 2018 both filed by the Defendants.

NOTICE OF MOTION DATED 22ND MARCH 2018

The Notice of Motion dated 22nd March 2018 is brought under Rules 15,16 and 17 of the High Court (Organization and Administration)(General) Rules, 2016, Section 3A, 6 and 7 of the Civil Procedure Act, Articles 40, 50 and 162 (2) of the Constitution, Order 40 Rule 7 and Section 13 of the Environment and Land Court Act and is seeking orders that the Court be pleased to stay the execution of the Judgment dated 17/1/18 and Court order issued on 30/1/18 and its consequential orders pending the hearing and determination of this Application; and that the judgment dated 17/1/18 and all the consequential orders be discharged and or set aside and the Defendants be allowed to defend the suit.

2. The Application is based on the grounds set out on the face of the motion namely:

1. The Applicants are the registered proprietors of the suit property namely NO. MN/11/819 CR. NO. 3412 formally known as PLOT NO.324/III/MN CR NO.345 the subject matter herein.

2. The proceedings are res judicata HCCC NO. 298 of 2013 because

a. The Applicants in the said suit were claiming adverse possession in 2013 over the suit property.

b. On 21/11/14, Hon. Justice Mukunya visited the suit property and established that the alleged squatters did not live, have houses, or other structures on the suit property, were not cultivating.

c. On this discovery alone, the case was dismissed.

d. Accordingly, the Honourable Court is therefore estopped by the provisions of Section 7 of the Civil Procedure Act from trying a case in between the same parties or parties claiming under same title, which was heard and finally decided on 21/11/14.

3. The Application for order for orders of adverse possession is sub judice to the Constitutional Petition No.74 Of 2014, Mahmood Kasam and 6 other vs Kazungu Katana & 389 others because,

a. The matters before herein are directly and substantially in issue in Constitutional Petition No 74 of 2014, in which the Applicants are claiming adverse possession and which suit is still pending before the High Court awaiting determination.

b. The parties in Constitutional Petition No. 74 of 2014 are the same parties in the present case and or parties claiming under the same title.

c. The Respondents are the petitioners in the Constitutional Petition No. 74 of 2014 and are claiming under the same title.

d. There is an order of injunction issued by the Court against the purported claimants in Constitutional Petition No. 74 of 2014, Mahmood Kasam and 6 others vs. Kazungu Katana & 389 Others.

e. The object of granting the injunction will be defeated unless a temporary stay is issued immediately.

4. The averments are outright falsehoods because, the Suit Property remains in exclusive possession of the 1-5 Applicants but now threatened with criminal trespass.

5. The affidavit of non-service sworn by Bernard Njoroge Mungai and filed in Court on 16/9/16 is pure falsehood because,

a. The Applicants undertake agricultural business in the name of Hussein Dairy on the suit premises.

b. The Applicants undertake transport business on the suit premises.

c. The Applicant has permanent employees on the suit premises.

d. No service was attempted on the Applicants personally or their agents.

6. The Applicant believes that the said affidavit was meant to create good grounds for substituted service.

7. The Applicant did not see and were not made aware of the newspaper advertisement and were only made aware of the existence of the instant suit and the Court orders on 19/3/18.

8. That the Applicants have a good defense to the alleged claim because there is undisputed evidence that to date, none of the claimants in any of the suit has any house, cultivates, or is otherwise lawfully occupying any part of the property.

9. The respondents herein do not live on the property and have not built any houses or structures on any part of the property.

10. That attempted unlawful entry has been reported to the police on various occasions.

11. The respondents obtained the vesting orders by misleading the Court and failing to disclose that the Applicants have been in continued occupation since 1960’s to date undertaking Dairy Farming business with over 1000 heads of cattle, growing pastures and the livestock and maintaining watering reserves.

12. Unless the execution of the orders of 30/01/18 are stayed the Applicant is apprehensive that the respondents will,

a. Invade the private property by violence and threats of violence.

b. Violently enter and take possession of the property and remain thereon.

c. Alter the status quo and claim that they are squatters.

d. Incite politicians to protect their otherwise unlawful action by political mass demonstrations.

13. In view of the above, the Applicants are apprehensive that they will suffer irreparable loss because the respondents will upon the strength of the orders dispose the suit property to unsuspecting members of the public/3rd parties, register transfers issue, title to such 3rd parties, thereby defeating or delaying any decree as the Court may ultimately issue.

14. The Applicant will be left without any remedy in law because it will be extremely difficult or impossible for them to obtain any compensation numerous 3rd parties or enforce a decree of vacant possession against the numerous 3rd parties in the very likely event that the Application succeeds or the order are ultimately set aside because the 3rd parties will claim to be bona fide purchasers for value without notice.

15. The balance of convenience is in favour of the Defendant/Applicant in view of the foregoing.

3. The Application is further supported by the grounds contained in the supporting affidavit of Esmail Kassam sworn on 22nd March 2018 in which he reiterates the grounds in support of the Application. The Plaintiffs did not file any response and therefore the Application is not opposed. Briefly, the Defendants contend that they are the owners of the Suit Property which measures 314 acres and they are in occupation undertaking farming activities on it. It is further their contention that the Plaintiffs misled the Court that the Defendants were not available for service and applied to serve by substituted service. The Defendants aver that they never came across the advertisement and only became aware of the suit on 19/3/18 when they noticed a large crowd outside the suit property. The Defendants further state that there was full non-disclosure by the Plaintiffs as they had attached a certificate of postal search which showed a property that was non-existent as the property had been sub-divided and the Plaintiffs are not in occupation. Further, that there have been previous suits over the same property.

4. I have considered the Application together with the affidavit in support as well as the submissions made by the Applicants’ counsel. The law on the setting aside of ex-parte judgment is now settled. The principle guiding the setting aside ex-parte orders are trite that the Court has wide powers to set aside such ex-parte orders save that where the discretion is exercised, the Court will do so on terms that are just. In the case of Patel – v – East Africa Cargo Handling Services Ltd (1974)EA 75 at page 76 Duffus P states this:

“There is no limit or restriction on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just… The main concern of the Court is to do justice to the parties, and the Court will not impose conditions on itself to fetter the wide discretion given to it by the rules. I agree that where it is a regular judgment as is the case here, the Court will not usually set aside the judgment unless it is satisfied that there is a defence on merits. In this respect defence on merits does not mean in my view a defence that must succeed, it means as Sheridan J put it ‘a triable issue’ that is an issue which raises a prima facie defence and which should go to trial for adjudication.”

In the case of Shah –v- Mbogo (1967)EA 116 at page 123, Harris, J stated:

“This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought by evasion or otherwise, to obstruct or delay the course of justice.”

5. In this case the Defendants aver that they are in occupation of the suit property and that no service was attempted on them. The Defendants also aver that they have a good defence to the Plaintiffs’ claim because none of the Plaintiffs is in occupation of any part of the property and that the suit is res judicata and/or sub judice. The Plaintiffs have not filed any response to the Application and therefore the Defendant’s averments are not challenged. From the supporting affidavit, the Defendants have in my view given sufficient reasons to persuade this Court to exercise its discretion in their favour. The Plaintiffs will not suffer any prejudice if the Application is allowed as its effect would be to allow the Court hear and determine the case on merit. The overriding objective of the Court would no doubt come to the aid of the Defendants. In the result, I find merit in the Application dated 22nd March 2018 and the same is allowed. The Defendants are directed to file their defence within 14 days from the date of this ruling. Costs of the Application shall be in cause.

NOTICE OF MOTION DATED 10TH APRIL 2018

6. The Notice of Motion dated 10th April 2018 is brought under Article 40 of the Constitution, Section 63(e) of the Civil Procedure Act and Order 40 Rules 1(a) and 10(1) (a) & (c) of the Civil Procedure Rules. The Application is seeking the following orders:

1. Spent

2. A temporary injunction restraining the Respondents, their servants or agents from entering, constructing, cultivating, cutting vegetation or in any way interfering with the Defendants’ quiet possession of the suit property (L.R. NO. 819/11/MN) pending the hearing and determination of this Application or for such other period as the Court may deem fit.

3. The Court revisits and inspects LR.NO.819/II/MN (the suit property) and make observations to establish the fact that the respondents are not in occupation or possession of the suit property and that they have no structures, crops, or any activity on the suit property.

4. A permanent injunction restraining the respondents their servants or agents from entering, constructing, cultivating, cutting vegetation or in any way interfering with the Defendants’ quiet possession of the suit property known as L.R. NO.819/II/MN.

5. The Court be pleased to issue an order directing the officer-in-charge of Kiembeni police post to assist in enforcing the orders of this Court.

6. Costs of the Application.

7. The Application is based on the grounds in the face of the motion and supported by the affidavit of Esmail Kassam sworn on 10th April 2018. Briefly, the Defendants aver that they are the registered proprietors of the land known as LR. NO.819/II/MN measuring 314. 0 hectares which they acquired through inheritance from their father one Kassam Hussein and his predecessors in the title from 1920 and that the Applicants have been and still are in exclusive possession since 1960s by themselves and through their company, Hussein Dairy Limited, undertaking dairy farming business, pastures and cattle watering reserves and road transport and staff quarters. That the respondents do not live and are not occupying the property and are members of a well-known group of commercial land invaders. The Defendants further aver that the Plaintiffs have misled the Court that there are no other proceedings between them and the Applicants over the same subject matter and cited ELC NO.201 OF 2013 and HCCC NO. 298 OF 2013 and that the Court visited the suit property on 21/11/14 and established that the alleged squatters did not have houses or structures thereon and that the property was wholly in possession of the 1-5th Defendants. That ELC No. 298 of 2013 was eventually dismissed by the Court. The Defendants state that there is an order of injunction issued by the Court against other alleged squatters In Constitutional Petition No. 74 of 2014. It is the Defendant’s contention that unless restrained by injunction, the respondents will violently enter the property, subdivide and prejudice the Applicant’s defense by unlawfully altering the status quo.

8. The Application is not opposed. I have carefully considered the Application. This being an Application for interlocutory injunction, the Applicants must satisfy the conditions laid down in the case of Giella-v- Cassman Brown & Co Ltd (1973)EA 358. The Applicants must show that they have a prima facie case with a probability of success and that they stand to suffer irreparable damage. If the Court is however in doubt on the foregoing, it will decide the matter on the balance of convenience.

9. The Defendants have exhibited a copy of certificate of title showing that they are the registered proprietors of the suit property. They have also stated that they have been and still are in exclusive possession of the suit property and have annexed photographs of permanent structures, cattle and vehicles. The Defendant’s averments are not denied. Having looked at the facts that have emerged in this case and the evidence advanced by way of affidavit, it is clear that the Applicants have established a prima facie with a probability of success. In my view, it is clear that the Defendants have shown their rights over the suit property. As regards irreparable damage, I take the view that the Plaintiffs intended actions on the suit property which have not been denied may result in a loss that might not be quantified in damages as the status of the property would have changed completely. The balance of convenience would tilt in favour of the Defendants who are in occupation so that the status of the land is not changed through the Plaintiff’s actions pending hearing and determination of the suit. I am therefore inclined to grant the Application as prayed.

10. In consequence, I allow the Application dated 10th April 2018 in terms of prayers 2, 3 and 5 thereof. The Defendants will have costs of the Application as well.

The Deputy Registrar of this Court is directed to organize a visit and inspection by the Court of LR. NO.819/II/MN and make observations to establish the persons in occupation or possession.

It is so ordered.

Ruling dated, signed and delivered at Mombasa this 17th day of July 2018.

C. YANO

JUDGE