[2017] KEELC 3297 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC NO. 200 OF 2008

DIPA PULLING……………….……………….……...…………. PLAINTIFF

VERSUS

SUCHAN INVESTMENTS LIMITED………………….……1STDEFENDANT

SANDEEP RAJNI DESAI……………..……………..…….2ND DEFENDANT

NIRANJAN JASHBHAI DESAI…………………..…….…3RD DEFENDANT

KEVIT SUBASH DESAI…………………………….……...4TH DEFENDANT

RULING

By a written will dated 29th March 1991 Jashbhai Mutibhai Desai (hereinafter “the deceased”) bequeathed to the Plaintiff and the 2nd, 3rd and 4th Defendants all that parcel of land known as Land Reference No. 209/1916/6 (Original No. 209/1916/1/1) (hereinafter “the suit property”) to be held by them as tenants in common in undivided equal shares. The deceased died on 11th July, 1991 and Grant of Probate of his written Will was issued to Niranjan Jashbhai Desai and Rajni Jashbhai Desai, the joint executors of his estate in Nairobi High Court Succession Cause No. 1147 of 1991. By a deed of assent dated 27th October, 1995, the said executors of the deceased’s estate transferred to the Plaintiff and the 2nd to 4th Defendants the suit property together with the buildings and improvements thereon to hold as tenants in common in equal shares. The Deed of Assent was registered on 22nd June, 1999.

Sometimes in the year 2004, a dispute arose between the 2nd, 3rd and 4th Defendants over their respective interests in the suit property. Thedispute was not resolved and the 3rd and 4th Defendants filed a suit against the 2nd Defendants in Nairobi HCCC No. 364 of 2004 seeking various reliefs among them, an order that the suit property be sold and the proceeds of sale less any liabilities incurred or to be incurred be shared equally among the registered proprietors. The Plaintiff was not made a party to that suit although she was one of the proprietors of the suit property. That suit was compromised through a consent which was recorded in court on 7th March, 2006. The consent provided in part as follows:-

i. The 2nd Defendant agreed with the 3rd and 4th Defendants that the suit property be sold and the proceeds of sale less any liabilities incurred or to be incurred be shared out equally among the registered proprietors.

ii. All disputes between the 2nd Defendant and the 3rd and 4th Defendants which gave rise to the suit were marked as settled.

Following this consent, the 3rd and 4th Defendants moved the court in Nairobi Succession Cause No. 1147 of 1991 aforesaid on 8th December 2006 seeking the courts approval of the said consent which was recorded on 7th March 2006 in Nairobi HCCC No. 384 of 2004. The Succession Court upon considering the 3rd and 4th Defendants application gave an order on 20th June 2007 approving the decision of the 2nd, 3rd and 4th Defendants to sell the suit property.

The Plaintiff was aggrieved with the order that was made in Nairobi Succession Cause No. 1147 of 1991 aforesaid and moved the Succession Court on 17th August 2007 to set aside the same on the ground that she was not served with the application which gave rise to the same. The Plaintiff’s application was allowed on 29th July 2008 and the court order which was made on 20th June 2007 in favour of the 2nd to 4th Defendants authorizing them to sell the suit property was set aside. While the Plaintiff application seeking to set aside the order which was made in Nairobi Succession Cause No. 1147 of 1991 on 20th June 2007 aforesaid was still pending, the 3rd and 4th Defendants entered into an agreement and supplementary agreement with the 1st Defendant on 14th February 2008 and 18th February, 2008 respectively for the sale of the 3rd and 4th Defendants ½ share in the suit property on terms and conditions which were set out in the said agreement. The agreement between the 3rd and 4th Defendants and, the 1st Defendant was completed successfully and the 3rd and 4th defendants ½ undivided share in the suit property was registered in the name of the 1st Defendant on 31st March, 2008.

On 29thApril 2008 the Plaintiff brought this suit seeking, a permanent injunction restraining the 1st Defendant from accessing the suit property for the purposes of destroying and/or demolishing the buildings thereon or any of them, a declaration that the Plaintiff is entitled to the quiet enjoyment of the suit property and, a declaration that the suit property being a National Monument cannot be destroyed. In her plaint dated 29th April 2008, the Plaintiff averred that she owned the suit property together with the 2nd to 4th defendants as tenants in common in equal shares and that the 3rd and 4th defendants had unilaterally sold their shares in the suit property to the 1st Defendant who had threatened to invade the suit property and destroy the buildings standing thereon which had been gazetted as a National Monument. The Plaintiff averred that in furtherance of its threats, the 1st Defendant’s director had visited the suit property on a number of occasions with armed policemen in an attempt to gain access to the property and on 18th April, 2008, the 1st Defendant entered the suit property and deposited building materials thereon.

Together with the Plaint, the Plaintiff filed an application by way of Chamber Summons dated 29thApril 2008 seeking a temporary injunction to restrain the 1st Defendant from interfering with her quiet enjoyment of the suit property and from entering the suit property for the purposes of carrying out construction thereon pending the hearing and determination of this suit. The Plaintiff’s application which was brought under certificate of urgency was heard exparte on 29th April, 2008 when interim orders were granted restraining the 1st Defendant from interfering with the Plaintiff’s quiet possession of the suit property pending the hearing of the application inter partes. The said order was extended from time to time. On 7th October 2008, the said order was extended by Osiemo J. until the hearing and determination of the application. From the record, the Plaintiff’s said application for injunction is still pending hearing and determination.

On 21st May 2008, the 2nd Defendant herein was added to the suit as 2nd Plaintiff on application by the 1st Defendant. On 29th May 2008, the 1st Defendant filed its statement of defence and counter-claim against the two Plaintiffs. On 25th February, 2009, the 1st Defendant amended its defence and counter-claim through which amendments, the Sandeep Rajni Desai who was previously the 2nd Plaintiff in the suit was struck out as a Plaintiff and made the 2nddefendant. Through the same amendments, 3rdand 4thDefendants were added as defendants to the suit. In its defence and counterclaim, the 1st Defendant averred that it purchased the 3rd and 4th Defendants shares in the suit property pursuant to the orders which were made in Nairobi HCCC No. 384 of 2004 and Nairobi Succession Cause No. 1147 of 1991 mentioned herein earlier.

The 1st Defendant averred that following that sale, the 1st Defendant was registered as the proprietor of the suit property together with the Plaintiff and the 2nd Defendant as tenants in common in undivided shares with the 1st Defendant holding two (2) shares and the Plaintiff and the 2nd Defendant one (1) share each. The 1st Defendant averred that although the 1st Defendant is the owner of two (2) shares in the suit property, the Plaintiff and 2nd Defendant had wrongfully restrained it from accessing the property. The 1st Defendant counter-claimed against the Plaintiff and the 2nd Defendant for among others, an order directing a registered surveyor to be appointed by the court or by agreement of the parties to partition the suit property, an order physically allocating the suit property to the Plaintiff and the 1st and 2nd Defendants in accordance with their respective shares and an order granting the 1stDefendant access to its portion of the suit property. From the record, the 2nd Defendant filed a Notice of Appointment of Advocates through the firm of Archer & Wilcock Advocates on 7th October, 2008 while the 3rd and 4th Defendants filed a Notice of Appointment of Advocates on 17th March, 2009 through the firm of Nelson Harun and Company Advocates. There is no evidence on record that the 2nd , 3rd and 4thDefendants filed their statements of defence to the Plaintiff’s claimand the 1st Defendants counter-claim.

What is now before me is the 2ndDefendant’s application by way of Notice of Motion dated 23rd March, 2016 in which the 2nd Defendant has sought a temporary injunction to restrain the 1st Defendant from entering, demolishing or in any other way whatsoever interfering with the 2nd Defendant’s quiet enjoyment and/or possession of L.R No. 209/1916/6 (the suit property) pending the hearing and final determination of this suit. The application was brought on the grounds that the 1st Defendant who is the owner of a disputed undivided share in the suit property entered the suit property through its agents without a court order on 18th March 2016 and damaged the buildings thereon, stole and caused mayhem. The 2nd Defendant contended that between 18th March 2016 and 20th March 2016, the 1st Defendant’s director a Mr. Kamal Shah accompanied by a group of about thirty (30) men armed with crude weapons broke padlocks to access the suit property and cut down the fence facing the main road, brought a bull dozer and trenching machine and started digging trenches and putting up a wall fence around the suit property. The 2nd Defendant stated that the 1st Defendant had placed security guards on the suit property and that the 1st Defendant’s activities aforesaid caused him and his mother who is 70 years old great trauma and fear for their safety.

The application was opposed by the 1st Defendant through a replying affidavit sworn by its director Kamal Chandulal Shah on 1st April 2016. The 1st Defendant averred that it was the owner of 50% and/or half portion of the suit property while the 2nd Defendant owns 25% of the same. The 1st Defendant averred that the 2nd Defendant occupies the main houses which are situated on half of the suit property. The 1stDefendant contended that although half of the suit property was transferred to it on 31st March 2008, the Plaintiff and the 2ndDefendant had prevented it from accessing its portion of the suit property. The 1st Defendant averred that for the last 8 years after it had acquired 50% of the suit property, the 2nd Defendant collected rent from the suit property and did not remit any portion thereof to the 1st Defendant. The 1st Defendant averred that the 2nd Defendant has all along treated the suit property as his own and that it contrived to have the same declared a National Monument by the Ministry of National Heritage and Culture. The 1st defendant stated that the decision by the Ministry of National Heritage and Culture to declare the suit property a National Monument was quashed by the Court of Appeal following a challenge by the 1st Defendant. The 1st Defendant contended that the 2nd Defendant had continued to occupy the whole of the suit property and to collect rent from the three (3) flats thereon which he had converted to his own use. The 1st Defendant averred that it had not derived any benefit from the portion of the suit property which it acquired from the 3rd and 4th Defendants. The 1st Defendant averred that following the decision of the Court of Appeal which declared that the suit property was not a National Monument, it instructed its agents to excise the unused portion of the suit property for the 1st Defendant. The 1st Defendant contended that following the said instructions, its agents took possession of the unused 50% portion of the suit property around which the 1st Defendant has erected a perimeter fence. The 1st Defendant contended that there was no court order restraining it from taking possession of the suit property. The 1st Defendant stated that it had effectively taken possession of its portion of the suit property and had a separate access gate to the same. The 1st Defendant denied that it broke into the suit property forcibly and caused damage and mayhem therein. Allegations of theft were also denied. The 1st Defendant contended that the court order issued herein was served upon it after it had already taken possession of its portion of the suit property. The 1st Defendant contended that it could not be barred from acts which had already taken place. The 1st Defendant contended that the 2nd Defendant’s application fell short of threshold set out in the case of Giella –vs- Cassman Brown & Co. Ltd. (1973) E. A. 358. The 1st Defendant contendedthat the 2nd Defendant had not lodged any claim against it and as such his injunction application had no basis.

At the hearing of the 2nd Defendant’s application, the 2ndDefendant and the 1st Defendants director, Kamal Chandulal Shah were cross-examined on their affidavits which were filed in support of and in opposition to the application after which the advocates who appeared for the two parties told the Court that they wished to rely on the material on record in support of their respective cases.

I have considered the 2ndDefendant’s application together with the affidavit filed in support thereof. I have also considered the evidence that was tendered by the 2ndDefendant during his cross-examination. Similarly, I have considered the 1st defendant’saffidavit in opposition to the application and the evidence that was tendered by the 1st Defendant’s director during his cross-examination. The principles upon which this court exercises its discretion in application of this nature are well settled. An applicant for a temporary injunction must establish a prima facie case with a probability of success against the respondent and must also demonstrate that unless the injunction is granted, he will suffer irreparable harm which cannot be compensated in damages. See, Giellavs. Cassman Brown and Co. Ltd. (supra). Under Order 40 of the Civil Procedure Rules, the court has power to grant a temporary injunction to a Plaintiff as well as a Defendant provided the conditions for such order are met. See, the case of Njoroge Kironyo and others vs. Kironyo Njoroge (1976) KLR 109. The onus is on the party seeking injunction to show the court that he has a prima facie case against the respondent and that he will suffer irreparable harm which cannot be compensated in damages if the injunction is not granted. In the case of Mrao Limited vs. First American Bank Limited & 2 Others (2003) KLR 125, the court defined a prima facie case as;

“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.”

In the case of Nguruman Limited vs. Jan Bonde Nielsen& 2 others[2014]eKLR, the court stated that;-

“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.”

As I have mentioned earlier in this ruling, this suit was brought by the Plaintiff against the 1st Defendant as the only Defendant. On application by the 1st Defendant, the 2nd Defendant was joined in the suit initially as the 2nd Plaintiff and subsequently as 2nd Defendant. The order striking out the 2nd Defendant as 2nd Plaintiff in the suit and joining him as a 2ndDefendant in the suit was made on 22nd March 2010. In the order, the 2nd Defendant was granted leave to file “relevant pleadings” within 14 days from the date of service of the amended defence and counter-claim. As I have already observed, there is no evidence on record that the 2nd Defendant filed any pleadings in response to the Plaint filed herein by the Plaintiff or the 1st Defendant’s defence and counter-claim. As a Defendant, the 2nd defendant had a right to file a statement of admission or a defence or both to the Plaintiff’s claim. The 2nd Defendant also had a similar right in respect of the 1st Defendant’s counter-claim against him and the Plaintiff. The 2nd Defendant could also make a claim against either the plaintiff or any of the co-defendants including the 1st Defendant. As things stand now, the 2nd Defendant chose not to file any pleading. As rightly pointed out by the 1st Defendant, the 2nd Defendant has not put forward any claim against the 1st defendant. The 2nd defendant has also not put forward any defence to the 1st defendants claim. In the circumstances, the court is unable to ascertain the issues which would arise for determination as between the 1st Defendant and the 2nd Defendant at the trial.

The Plaintiff’s case against the 1st, 3rd and 4th Defendants is that the 3rd and 4th Defendants unilaterally sold their shares in the suit property to the 1st Defendant without seeking and obtaining her consent. The Plaintiff has contended that the sale of the 3rd and 4th Defendant’s shares in the suit property to the 1st Defendant was wrongful. I have noted from the decree that was issued on 3rd April2006 in Nairobi HCCC No. 364 of 2004 which I have referred to earlier in this ruling that the 2nd Defendant herein had consented to the sale of the suit property. The 2nd Defendant having agreed to the sale of the suit property as aforesaid, it is not clear from the record and the affidavit in support of the 2nd Defendant’s current application whether or not the 2nd Defendant is challenging the sale of the 3rd and 4th Defendants shares in the suit property to the 1st Defendant. Due to the foregoing, I am doubtful of the merit of 2nd Defendant’s case against the 1st Defendant. The case if any has neither been pleaded nor established on a prima facie basis.

Having expressed doubts on the 2nd Defendant’s case against the 1st Defendant, the chances of the 2nd Defendant suffering irreparable harm if the injunction sought is not granted is equally doubtful. Due to the foregoing, the 2nd Defendant’s application falls for consideration on a balance of convenience. Having considered the circumstances of this case as a whole, I am of the view that justice would be served if the status quo prevailing as of the date hereof is maintained. The 2nd Defendant has 25% share in the suit property and as such he is entitled to occupy the same. On the other hand, the 1st Defendant has 50% share in the suit property. Until the acquisition by the 1st Defendant of the 3rd and 4th Defendant’s 50% share in the suit property is declared illegal, null and void, the 1st Defendant remains the owner of the said shares and is entitled to enjoy the rights associated with such ownership provided that the rights of the Plaintiff and the 2nd Defendant who owns the remaining 50% share in the suit property is respected.

From the material before me, I have noted that the 1st Defendant entered the suit property in March 2016 and fenced a portion thereof. The 1st Defendant has contended that the fenced portion of the suit property is its 50% share of the suit property. There is no evidence that the suit property has been formally partitioned amongst the registered owners thereof. I do not think that it was open to the 1st Defendant to unilaterally excise a portion of the suit property for itself more particularly when he had filed a counter-claim herein seeking an order for partition. Although the 1st Defendant has denied it, the evidence before me shows that the entry of the 1st Defendant onto the suit property was forceful. A court of law would not entertain this kind of conduct. Solving of land disputes through the use of hired bunch of hooligans has no place in Kenya of today. This trend which is gaining root must stop. I have not been called upon to order the demolition of the 1st Defendant’s wall which it put up on the suit property forcefully by use of thugs for hire and for his eviction therefrom. I would not have hesitated in making such order.

In the case of KamauMucuha-vs- The Ripples Ltd. (Civil Application No. Nai. 186 of 1992)Justice Cockar, JA stated that, “ A party, as far as possible ought not to be allowed to retain a position of advantage that it obtained through a planned and blatant unlawful act…..”.In the case of Jaj Superpower Cash and Carry Ltd. –vs- Nairobi City Council & 2 others, Court of Appeal at Nairobi, Civil Appeal No.111 of 2002,the Court stated that , “……..a wrong doer cannot keep what he has taken because he can pay for it.”

On the state of the pleadings currently before me, I will only make an order which will ensure that there shall be no further interference with the 2nd Defendant’s occupation of the suit property saves as may be ordered by the court.

In the final analysis and for the foregoing reasons, I hereby make the following orders in respect of the 2nd Defendant’s Notice of Motion application dated 23rd March, 2016:-

1. Pending the hearing and determination of this suit or further orders by the court, the 1st Defendant is restrained from demolishing buildings and/or structures on L.R No. 209/1916/6(suit property) and from in any way interfering with the 2nd Defendant’s possession and enjoyment of the portion of the suit property in the possession of the 2nd Defendant as of the date hereof.

2. Pending the hearing and final determination of this suit or further orders by the court, the 1st Defendant is restrained from carrying out any other or further construction or development of any nature on L.R No. 209/1916/6 or any portion thereof.

3. All rent if any being collected from the suit property shall with effect from 1st April 2017 be deposited in an interest earning joint bank account in the names of the advocates on record for the Plaintiff and 1st and 2nd Defendants.

4. The orders granted herein shall last for a period of eight(8) months only from the date hereof within which the parties must prepare and set down this old case for hearing and final determination.

5. The costs of the application shall be in the cause.

Delivered and Signed at Nairobi this 28th day of March, 2017

S. OKONG’O

JUDGE

In the Presence of

Mr. Muthee h/b for Wangui Shaw for the Plaintiff

Mr. Kamau for the 1stDefendant

Ms. Manyaga for the 2nd Defendant

N/A for the 3nd and 4th Defendant

Kajuju Court Assistant