[2018] KEELC 4750 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC CIVIL SUIT NO. 327 OF 2015

BAKARI ALFANI HAMISI.......................................PLAINTIFF/APPLICANT

-VERSUS-

GEORGE OJIAMBO OUMA…...…......………….….......1ST DEFENDANT

THE ATTORNEY GENERAL…………...…………….....2ND DEFENDANT

THE REGISTRAR OF TITLES….....................................3RD DEFENDANT

RULING

1. The application dated 7. 12. 2015 is brought under the provisions of Order 40 and 51 and the provisions of Section 1A, 1B & 3A of the Civil Procedure Rules & Act respectively. The plaintiff/applicant seeks for orders that:

a) Spent

b) That a temporary injunction be issued restraining the defendants by themselves, agents, employees, servants, and/or other persons acting on their behalf from developing alienating, subdividing, selling and/or dealing with parcel of land known as KILIFI/MTWAPA/23 measuring approximately 2 ½ acres and any manner whatsoever transferring interests herein pending the hearing and determination of this suit.

c) That costs of this application be provided for.

2. The applicant gave a narrative on how he acquired the suit plot which he says has been illegally registered in the name of the 1st defendant. He annexed a copy of a search showing the title was issued to the 1st defendant on 18. 11. 1996. The pleadings were served via substituted service by placing an advertisement on the standard newspaper of 12th April 2017 as evidenced in the affidavit of service on record. The 1st defendant has not entered appearance in the suit.

3. The application is opposed by the attorney general on behalf of the 2nd & 3rd defendants. The 2nd & 3rd defendants listed the following reasons as grounds why the orders should not be granted:

i) That the application is misconceived, frivolous, vexatious and an abuse of the process of the Court.

ii) The orders sought are untenable and a nullity.

iii) Applicant is guilty of laches.

iv) That the applicants are the author of their own misfortunes.

4. The advocates on record agreed to file written submissions but none was filed. I have therefore considered the application on its merits based on the pleadings before Court before granting an order of temporary injunction, the applicant must demonstrate either of the following:

i) That he has a prima facie case with probability of succeeding.

or

ii) If the orders sought are not issued he will suffer irreparable loss that cannot be compensated by an award of damages

and

iii) If in doubt in whose favour the balance of convenience tilts.

5. In the instant application, the applicant has deposed in his affidavit that he is in occupation of the suit land. He has also annexed correspondence from the government agencies assuring him that the suit land is his (Annexed as BAH 1 to BAH – 5). These facts have not been disputed. The facts as presented demonstrates that the applicant has a prima facie case and the balance of convenience tilts in his favour for the prevailing circumstances to be maintained. The 2nd & 3rd Respondents did not explain why they felt the orders sought are untenable and a nullity. They did not specify how the application is frivolous et al.

6. I am thus satisfied the applicant has reason to seek orders to preserve the suit title from changing hands so that this case is not rendered an academic exercise. Consequently I do grant the application in terms of prayer 3 with an order that each party bear their respective costs of the application.

7. I have also considered the size of the subject matter herein and is of the view that it is a matter that falls within the jurisdiction of the Magistrate’s Court. Accordingly I suo moto transfer the file forthwith to Kilifi Principal Magistrate’s Court for trial and determination.

Dated, signed at Mombasa this 25th January 2018.

A. OMOLLO

JUDGE

Delivered at Mombasa this 26th January 2018

C. YANO

JUDGE