[2023] KEELC 21001 (KLR)

Durahard Ltd v Mbarak & 3 others (Environment & Land Case E043 of 2023) [2023] KEELC 21001 (KLR) (24 October 2023) (Ruling)

Neutral citation: [2023] KEELC 21001 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case E043 of 2023

NA Matheka, J

October 24, 2023

Between

Durahard Ltd

Plaintiff

and

Salim Mbarak

1st Defendant

Abdalla Magram

2nd Defendant

Mohamed Fahiye

3rd Defendant

Salim Mbarak

4th Defendant

Ruling

1. The application is dated May 11, 2023and is brought under 1B, IA, 3A, 63 (c) and (e) of the Civil Procedure Act, Order 40 Rule 1, 2 & 4 of the Civil Procedure Rules 2010 seeking the following orders;1. That a temporary injunction to issue against the defendant/respondents either by themselves, their employees servants and/or agents from preventing the plaintiff from constructing a perimeter wall on the suit property to secure it from further invasion by other squatters pending the hearing and determination of this application.2. That a temporary injunction to issue against the defendant/ respondents either by themselves, their employees servants and/or agents from preventing the plaintiff from constructing a perimeter wall on the suit property to secure it from further invasion by other squatters pending hearing and determination of the suit. 3. That the plaintiff be granted vacant possession of the suit property by the eviction of the defendants from the suit property known as Plot No. 1241/I/MN.

4. That the County Police Commander and the Officer Commanding Station (OCS) Nyali police station to assist in the execution of orders (2) & (4) above.5. That the plaintiff herein be granted leave to serve the defendants with these proceedings by advertisement in one of the local dailies within fifteen (15) days from the date of the order of the court.6. That court should issue any other order it deems fit and necessary in the circumstances of the case.7. That cost of this application be provided for.

2. It is based on the grounds that the plaintiff is the absolute and registered owner of the parcel of land known as Plot No. 1241/1/MN. That theplaintiff's title to the aforesaid parcel of land has never been challenged or at any time been in dispute. That when the plaintiff bought the land a few of the defendants were tenants in a portion of the land having houses without land. That the defendants have since erected additional structures without the plaintiff's knowledge and consent. ii. Allowed and or opened an access road through the plot without the plaintiffs knowledge and consent and invited third parties to build structures, stores, and drug peddlers den on the plot without the plaintiff’s knowledge and consent.

3. That defendants continuing trespass, stay and occupation of the above property is illegal and they should be evicted. That the defendants, their agents, servants, employees and/or employees continual trespass and/or stay on the suit property has hindered and/or prevented the plaintiffs actual possession and quite enjoyment of the same. That it is imperative that orders to vacate and/or eviction be issued against the defendant otherwise the plaintiff will continue to suffer loss and damage.

4. This court has considered the application and submissions therein. the respondents were served by way of a news paper advert and they did not respond to the application. The Applicant seeks a mandatory injunction from preventing the plaintiff from constructing a perimeter wall on the suit property to secure it from further invasion by other squatters pending hearing and determination of the suit. And to be granted vacant possession of the suit property by the eviction of the defendants from the suit property known as Plot No. 1241/I/MN. These are similar orders sought for in the plaint. In the case of Kenya Power & Lighting Co. Limited v Sheriff Molana Habib (2018) eKLR it was held inter alia as follows;…A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected. A permanent injunction is different from a temporary/interim injunction since a temporary injunction is only meant to be in force for a specified time or until the issuance of further orders from the court. Interim injunctions are normally meant to protect the subject matter of the suit as the court hears the parties…”

5. When it comes to mandatory injunctions, courts have been hesitant to grant the same particularly at the interlocutory stage, save in clear-cut cases. Such was the reasoning taken by the court in Lucy Wangui Gachara v Minudi Okemba Lore (2015) eKLR when it rendered itself thus:…the court will not grant a mandatory injunction if the damage feared by the plaintiff is trivial, or where the detriment that the mandatory injunction would inflict is disproportionate to the benefit it would confer. We would also add that, save in the clearest of cases, the right of the parties to a fair and proper hearing of their dispute, entailing calling and cross-examination of witnesses must not be sacrificed or substituted by a summary hearing.

6. Persuasive judicial pronouncements by Indian courts have also affirmed that great circumspection is called for before awarding a mandatory injunction at interlocutory stage. In Bharat Petroleum Corp Ltd v Haro Chand Sachdeva, Air 2003, Gupta, J. of the Delhi High Court observed as follows:“While courts power to grant temporary mandatory injunction on interlocutory application cannot be disputed, but such temporary mandatory injunctions have to be issued only in rare cases where there are compelling circumstances and where the injury complained of is immediate and pressing and is likely to cause extreme hardship. If a mandatory injunction has to be granted at all on interlocutory application, it is granted only to restore status quo and not to establish a new state of things.”

7. For the foregoing reasons, I find that it would be premature for me to grant permanent injunction at this stage in favour of the plaintiff. I find that the plaintiff has raised a prima facie case and I order that the status quo be maintained pending the hearing and determination of this suit. Parties are advised to comply with order 11 and set the suit down for hearing within the next 30 (thirty) days. Costs of the application to be in the cause.It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 24THDAY OF OCTOBER 2023. N.A. MATHEKAJUDGE