[2018] KEELC 4567 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC NO. 338 OF 2017

FELISTER JOYCE OKAA............................PLAINTIFF/APPLICANT

VERSUS

ZACHARIAH KUYA OKATA................DEFENDANT/RESPONDENT

RULING

This application is dated 6th September 2017 and is brought under Section 3, 3A of the Civil Procedure Act, order 37, order 11 rule 3 (1) (h), order 40 rules 1 (a, b), 4 (1,4) order 51 rules 1, 3, 4, 5, 7 and (10) 2 of the Civil Procedure Rules 2010, Sections 37 and 38 of the Limitations of Actions Act, 27 and Section 28 of the Land Registration Act No. 3 of 2012 seeking the following orders;

1. THAT this application be certified as urgent.

2. THAT pending the hearing and determination of this application, this honorable court be pleased to grant an order of interim injunction restraining the defendant or his servants’ agents or any other person assigned or with their authority to interfere with land parcel NO. W/BUNYORE/EBUSAKAMI/1852 measuring 0. 5 acres which is being occupied by the plaintiff/applicant herein.

3. THAT pending the hearing and determination of this suit, this honourable court be pleased to grant an interim orders restraining the respondent or his agents from carrying out any construction or trespassing on land parcel No. W/BUNYORE/EBUSAKAMI/1852 measuring 0. 5 Ha which is being occupied by the plaintiff/applicant herein.

4. An order that there be a stay of proceedings in Maseno Law Courts vide CIVIL CASE NO. 115 of 2014.

5. An order that the Maseno CIVIL CASE NO. 115 of 2014 be transferred and consolidated with the suit herein.

6. THAT costs of this application be provided; and

7. THAT such further and other relief that this honourable court may deem just and fit to grant.

The applicant submitted that, she got married to Bernardus Paulus Maria Van De Graaf in the year 1987 under the Luhya Customary Laws and at that time he was living in land parcel known as No. W/BUNYORE/EBUSAKAMI/1852 measuring 0. 5 acres as marked on the ground and he had bought the same from Dr. Osaga Odak in the year 1982. She had three (3) children with him as they stayed in the parcel of land. Her husband built the house in 1983 (attached is a copy of the photo of the house that she has been staying in since 1987 and copies of documents showing how her husband built the house, marked as F.J.0 – 1a and 1b). That for more than 12 years she has lived on the piece of land peacefully. She has lived on the land for thirty (30) years. That now Zakariah Kuya Okata is threatening to evict her from the parcel of land which is illegal according to the law. He has filed a case at Maseno Law Courts vide Maseno Civil case No. 115/2014 which court does not have jurisdiction to hear and determine the matter. In 2014 when the suit was filed in Maseno, she had lived on the parcel of land for twenty seven (27) years. The defendant/respondent is time barred and cannot evict her from the property where she is claiming adverse possession. (attached is a copy of the pleadings from the court at Maseno marked as F.J.0. -2). That twelve years have lapsed and Zachariah is barred by the law from evicting her from the parcel of land No. W/BUNYORE/EBUSAKAMI/1852. That she has peacefully used and been in occupation uninterrupted of the aforesaid parcel of land with the knowledge of the defendant and everyone is aware that the land actually belongs to her and her family. That neither the defendant nor any other person has ever interfered with her occupation or use of the said portion for more than the twelve years that she has been in occupation of the said portion of land. That upon expiry of 12 years she has been in occupation of the portion, the defendants’ rights (if any) over the land portion No. W/BUNYORE/EBUSAKAMI/1852 measuring 0. 5 acres got extinguished by operation of law. The defendant/respondent holds the said parcel of land in trust for her and her family.

The applicant is in possession of the suit property. The applicant has relied in the suit property for more than twelve (12) years uninterrupted since 1987. The applicant got children and they are now adults and she is still living in the same suit land. The applicant states that though she is a niece to the respondent, she has not lived in the suit land as a tenant to the respondent. The respondent has not demonstrated to court how the applicant is a tenant or a licencee to the respondent.

The issue of res judicata does not arise in the suit here. High Court Civil case No. 241 of 1986 does not involve parties who are in parties in the present application. The cause of action in the present case is one of adverse possession. The parties in the said suit are different from the parties herein. Further a careful perusal of the court order for dismissal shows that the case was never determined on its merits. In the Maseno case the cause of action is vacant possession while the cause of action in the present case is one of adverse possession. The two causes of action are different from the present case. Res judicata does not apply in the present circumstances.

The applicant has demonstrated that she is possession of the suit property herein. The applicant has demonstrated that she has lived in the suit property for more than 12 years. She has also demonstrated that the respondent intents to evict her vide Maseno PMCC 115 of 2014.

To be entitled to the orders sought for one has to prove that there is eminent danger that the applicant is to suffer and that if the orders being sought for are not granted, the applicants will not be compensated easily in monetary terms as she will be dispossessed of a place she has known as her home for twenty seven (27) years and that the applicants suit stands a chance of high success.

They relied on the case of Embu County Government vs. Jim Reeves Gitonga Njiru (2017) eKLR where the court stated that, “The court also finds that given the nature of the dispute, an award of monetary damages would not be an adequate remedy should the applicant succeed at the trial. The applicant is seeking to recover what it considers to be community land to be used for community purposes”.

It is the respondent’s submissions are that the applicant is not entitled to any of the orders being sought for on grounds that she has not met the conditions required to warrant grant of any of the orders. As regards the order of injunction, we wish to be guided by the principles laid down in the Giella vs. Cassman Brown case which provides for the conditions prerequisite to the grant of injunctive orders.

The applicant has not established a prima facie case to warrant grant of the injunctive orders. For starters, this suit is res judicata and as such, entertaining it further would be tantamount to an abuse of the court process. The first time this suit was in court was in Kisumu HCC No. 241 of 1986 where the applicant’s husband had sued the respondent over the same suit property and the same was dismissed on grounds of want of prosecution thereby bringing the matter to its conclusive determination. The applicant’s institution of the suit over the same cause of action is therefore in breach of the well laid principle of Res Judicata and an abuse to the court process.

In E.T. VS. Attorney General & Another (2012) eKLR it was stated;

“Courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction.”

Similarly in Omondi vs. National Bank of Kenya Ltd and others (2001) EA 177, the court held that;

“Parties cannot evade the doctrine of Res Judicata by merely adding other parties or causes of action in a subsequent suit.”

Quoting the sentiments of Kuloba J. inNjangu vs. Wambugu & Another Nairobi HCC No. 2340 of 1991 (unreported);

In addition to the suit being res judicata, it is equally sub judice. Presently there is an ongoing suit in Maseno PMCC 115 of 2014 instituted by the respondent seeking vacant possession of the suit property, on grounds of nonpayment of rent by the applicant. The respondent therefore largely disparages the present suit by the applicant as a mere side show and an attempt to shift focus and cause unnecessary delays to the detriment of the applicant. On this ground, they beseech the court to have the ongoing suit in Maseno PMCC 115 of 2014 proceed to its final determination and reject any attempts by the applicant to subvert the course of justice through tactical delays by improvising of new suits.

On the question of adverse possession, it is our submission that the applicant does not qualify to be an adverse possessor of the suit property. The applicant’s stay in the suit property has been subject to constant interruptions owing to numerous litigation throughout her stay. Indeed, the respondent reiterates that the applicant got into the suit property by virtue of a tenancy relationship existing between the applicant’s husband and himself. The applicant is just a mere licensee in the respondent’s property. The tenancy relationship is evident in the filing of Kisumu HC 241 of 1986 by the applicant’s husband seeking orders to have the respondent restrained from levying distress of rent or evicting them for their failure to pay rent. The suit was dismissed and no evidence was offered to rebut the existence of the said tenancy relationship. Further, vide a letter dated 26th October 1987 attached to the respondent’s replying affidavit and addressed to the applicant, he reaffirms the existence of this tenancy relationship and demands that either the applicant’s husband pays the outstanding rent in arrears of Ksh. 1800 per month or have him vacate his land. The letter further confirms the series of litigation between the parties when the respondent refers to Vihiga Criminal Case No. 620 of 1987 where he was maliciously accused of creating disturbance by the applicant’s husband, thereby leading to his arrest, trial and eventual acquittal, owing to the dispute in the suit land. The ongoing Maseno PMCC 115 of 2014 filed by the respondent equally points to a strained tenancy relationship whereby the respondent seeks for orders to have the applicant vacate his premises. These series of suits indeed is proof of interruptions contrary to the requirements of adverse possession which stipulates that occupation must be devoid of interruptions. Further, the applicant, in her own affidavit and annextures indeed allude to the interruptions. Owing to the fact that the applicant’s stay in the suit land has been marred with frequent interruptions, then the tenets of adverse possession have not been met and therefore the applicant has no right to the suit property by virtue of the adverse possession.

The applicant has equally failed to file in court a certified copy of the land records as required by law. Other than merely stating that she has stayed on the suit premises for about 27 years, there is nothing at hand to show that indeed she has a right to the property. In absence of proof, her word cannot be relied upon.

The second qualifier to an order of injunction is that the applicant should demonstrate that he/she is bound to suffer irreparable loss/injury should the injunction not be granted. As it stands presently, the respondent is bound to suffer irreparable harm should the order of injunction be granted. As already established, the applicant is on the suit property by virtue of being a tenant and a niece to the respondent. Throughout their stay, the applicant and her husband have been in rent arrears thereby prompting the respondent to institute a suit in Maseno PMCC 115 of 2014 to have them vacate his land. The respondent has already suffered loss of mesne profits owing to their default in paying rent. Allowing the application will be akin to punishing the respondent who will have to incur more financial loss as a result of their illegal stay. It will therefore be in the interest of justice and fair play to have the application declined as irreparable loss will indeed be occasioned on the respondent.

It is their submission that the balance of convenience tilts in favour of the respondent. The comparative loss that will be caused to the respondent should the order of injunction be granted will be greater compared to the loss incurred by the applicant should the order not be allowed. As earlier posited, the respondent has already been subjected to loss of mesne profits through the applicant’s nonpayment of rent and an order of injunction at this point will only serve to do him more harm.

As regards the order of stay of proceedings and transfer of suit, the applicant has not laid any basis as to why the prayers should be granted. It is trite law that a party wishing to have a suit transferred must give reasons for the same. This was held in the case of David Kabungu vs. zikarenga & 4 others Kampala HCCS NO. 36 OF 1995 where it was stated;

“Section 18 (1) (b) of the Civil Procedure Act gives the court the general power to transfer all suits and this may be exercised at any stage of the proceedings even suo moto by the court without application by any party. The burden lies on the applicant to make out a strong case for the transfer. A mere balance of convenience in favour of proceedings in another court is not sufficient ground though it is a relevant consideration. As a general rule, the court should not interfere unless the expense and difficulties of the trial would be so great as to lead to an injustice or the suit has been filed in a particular court for the purposes of working injustice. What the court has to consider is whether the applicant has made out a case to justify if in closing the doors of the court in which the suit is brought to the plaintiff and leaving him to seek his remedy in another jurisdiction ............ it is a well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another to make out a strong case to the satisfaction of the court that the application ought to be granted.”

The applicants in this case have failed to establish a reason as to why the suit should be transferred and consolidated. In the absence of a cogent reason, they there is nothing upon which the court will rely on to peg its consideration as to whether or not to allow the application. In their case, they decline the grant of the orders sought for on grounds that the matter in Maseno PMCC 115 of 2014 is in its advance stage of hearing and consolidation with this case will have the effect of derailing the determination of the said case.

This court has carefully considered both the applicant’s and the respondent’s submissions and the annnextures therein. The principals governing the grant of interlocutory injunction are clear. As stated in the case of Giella vs. Cassman Brown (1973) EA 358.

“The conditions of granting an injunction are now, I think well settled in East Africa. First an applicant must show a prima facie case with a probability of success. Secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

Furthermore, as elaborated in the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others (2003) Hon Bosire J.A. held that:

“So what is a prima facie case? I would say that it is a case in which on the material presented to the court or 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 ............”

Further he goes on to state that“................. a prime facie case is more than an arguable case, it is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”

The applicant filed an application dated 26th September, 2017 seeking among others restraining orders against the respondent from interfering with the suit property pending the hearing and determination of the suit herein, transfer of the Maseno Civil suit and staying the proceedings. The applicant’s application was supported by the grounds on the face of the application and the supporting affidavit of the applicant and annextures thereto. The respondent filed a replying affidavit in response to the application.

The application is based upon the grounds that the applicant has since 1987 been in occupation of land parcel No. W/BUNYORE/EBUSAKAMI/1852 measuring 0. 5 acres which is being occupied by the plaintiff/applicant herein and her family. That the applicant has been in quiet possession uninterrupted on the said parcel of land parcel No. W/BUNYORE/EBUSAKAMI/1852 measuring 0. 5 acres which is being occupied by the plaintiff/applicant herein and her family. That the respondent is in the process of evicting the applicant and her family from land No. W/BUNYORE/EBUSAKAMI/1852 measuring 0. 5 acres which is being occupied by the plaintiff/applicant herein and her family. That the respondent wants to evict the applicant and her family from using, utilizing, being in occupation, staying or cultivating on the said parcel of land. That the applicant and her family are in danger of losing their land which she has been in possession of since 1987.

The respondent opposed the same and states that this claim is both res judicata Kisumu HCC No. 241 of 1986 and sub judice the case namely, Maseno PMCC 115 of 2014. That in Kisumu HCC NO 241 of 1986 the applicant’s husband Bernabas Paulus Maria Van De Graff sued him claiming the same suit property. The suit was dismissed by the court. Annexed and marked “ZKO-1” is a copy of the plaint, “ZKO-2” copy of the defence and “ZKO-3” copy of the court order dismissing the case in Kisumu HCC 241 of 1986. That in Maseno PMCC 115 of 2014 he had sued the respondent herein to grant him vacant possession. The suit is still pending in court. The respondent had in fact annexed the pleading as annexure “FJO-2” to her supporting affidavit. That essentially this suit is an abuse of the court process in light of the above. That on its merit, the applicant has not demonstrated the ingredients to warrant being declared an adverse possessor. The applicant has been occupying the suit property by virtue of being both his niece and tenant. The occupation as such is not with secrecy. Annexed and marked “ZKO-4” is a copy of a letter between the applicant and her husband about buying the suit property from him once the husband divorces his first wife and marries the applicant. That on 26th October, 1987 he wrote a letter to the applicant’s husband to pay rent that had been outstanding for some time. Annexed and marked “ZKO-5” is a copy of his letter dated 26th October, 1987. That again on 29th March, 2007 through his then lawyers Kowino & Co. Advocates he wrote a letter to the applicant demanding her to pay rent and avoid bringing strangers to his property failure to which he was going to evict her. Annexed and marked “ZKO-6” is a copy of the letter dated 29th March, 2017 by his lawyers Kowino & Co. Advocates. That in Maseno PMCC 115 of 2014 he is seeking the applicant herein to grant him vacant possession for reasons of nonpayment of rent. Prior to this her estranged husband used to pay him rent upto 1986. This led to the applicant’s husband filing of Kisumu HCC 241 of 1986 in an attempt to injunct him from levying distress or evicting them. The applicant is only but a licensee on his suit property. That the applicant has also failed to file in court a certified copy of the land records as required by law. That the applicant’s occupation of the suit property has not been without numerous interruptions in his numerous attempts to recover rent and in default their eviction from the suit property. The two cases Kisumu HCC No. 241 of 1986 and Maseno PMCC 115 of 2014 a test to this. The Maseno case has been filed in a court of competent jurisdiction as found in Nairobi Court of Appeal decision in Nairobi Civil Appeal 287 of 2016. LSK Nairobi Branch vs. Malindi Law Society & Others.That the suit property does not belong to the applicant. He is also not holding it on behalf or in trust of the applicant. The land belongs to him and no one else apart from him has the title. The affidavit of Bernabas Paulus Maria Van Graaf being relied on by the applicant is full of falsehood. Annexed and marked “ZKO-7” is his letter dated 6th February, 1988 to the Provincial Special Branch, Kisumu complaining of the frustrations he has met with the applicant’s husband and seeking their help to remove him from his house. That he is the registered owner of the suit property having purchased the same from one Dr. Osago Odak as shown from the previous owner Dr. Osaga to their local area assistant chief confirming that he sold the land to him. That the applicant has not attained any adverse possession over the property. That the applicant has equally not demonstrated being in possession for any period without secrecy, without force and without interruption. That this court cannot stay the Maseno case and no compelling reasons have been made to warrant the court staying the Maseno case. That the applicant has also not invoked the proper procedure to have the Maseno file transferred to this court.

The applicant states that she is in occupation of the suit property. She further states that she has been living in the suit property from the time she got married in 1987 and had three children with her husband. She states that the house on the suit property was built by her husband and she has stayed in the suit property for more than twelve years precisely 27 years. She attached a copy of the affidavit of her husband which precisely elaborates how the land was acquired and the developments made on the suit land.

From the facts above the tenets of adverse possession has not been met by the applicant, then she has no proper basis to lay claim on the land. There has been series of litigation between the parties when the respondent refers to Vihiga Criminal Case No. 620 of 1987, Kisumu HCC No. 241 of 1986 and Maseno PMCC 115 of 2014 and these are not disputed. The applicant’s occupation of the suit land has not been peaceful, uninterrupted and continuous. I find that, the applicant has failed to establish a prima facie case with a probability of success and is therefore not entitled to injunctive orders as prayed for at this stage.

On the issue of the transfer of the Maseno case to this court, it is not disputed, there is an ongoing suit in Maseno PMCC 115 of 2014 instituted by the respondent seeking vacant possession of the suit property, on grounds of nonpayment of rent by the applicant. The Maseno case has been filed in a court of competent jurisdiction as found in Nairobi Court of Appeal decision in Nairobi Civil Appeal 287 of 2016. LSK Nairobi Branch vs. Malindi Law Society & Others.This prayer must also fail. The applicant appears to be forum shopping and this cannot be allowed.

I find that the application before the court is unmerited, mischievous and an abuse of the due process of the court and as such I dismissed with costs to the respondent.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 7TH DAY OF FEBRUARY 2018.

N.A. MATHEKA

JUDGE