[2021] KEELC 4608 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MALINDI

ELC CASE NO. 71 OF 2019

FREEDOM LIMITED.......................................................................................PLAINTIFF

VERSUS

1. THE COUNTY GOVERNMENT OF KILIFI

2. RAIN DROPS LIMITED.....................................................................RESPONDENTS

RULING

1. By their Notice of Motion dated 22nd August 2019 as filed herein on 27th August 2019, Freedom Ltd (the Plaintiff/Applicants) pray for orders: -

3. That pending the hearing and determination of this suit, this Honourable Court be pleased to issue (an order of) injunction restraining the 1st and 2nd Defendants/Respondents by themselves, their employees, servants and/or agents or assignees, proxies and/or any other person howsoever authorized by the 1st and 2nd Defendants from ingress into, trespass, demanding cess payment, clamping motor vehicles, equipment and machinery, within the Plaintiff’s premises, harassing and intimidating the Plaintiff’s work force, impeding developments and/or in any other manner howsoever disrupting the Plaintiff’s quiet enjoyment of all (those) premises known as Plot No. 1948/MN/V (now No. 2028 MN/V) situate at Mazeras, Kilifi County;

4. Any other relief which this Honourable Court may deem fit for the purpose of justice; and

5. That the costs of this application be borne by the Defendants.

2. The application which is supported by an Affidavit sworn by Harji Govind Ruda, a director of the Plaintiff company, is premised on the grounds that: -

a) The Plaintiff is the registered and beneficial owner of the premises known as Plot No. 1948/MN/V (now No. 2028 MN/V) situated at Mazeras, Kilifi County;

b) The Plaintiff is engaged in construction of a perimeter wall and sentry boxes as well as creation of pathways into and out of the premises among other things and have paid for and procured all requisite formalities and approvals;

c) The Defendants without any colour of right or probable cause stormed into the said premises and clamped the machinery and equipment being used therein and thereby occasioning loss and damage to the Plaintiff;

d) The Defendants are now extorting monies from the Plaintiff’s agent on the ground purporting to collect cess; and

e) The Plaintiff stands to suffer irreparable loss and damage unless the orders sought are granted.

3. By a consent recorded in Court on 5th December 2012, the Plaintiff and the County Government of Kilifi (the 1st Defendant) marked the suit as between the parties settled with no order as to costs thereby rendering the dispute herein as solely between the Plaintiff and the 2nd Defendant.

4. In response to the application, Messrs Rain Drops Ltd (the 2nd Defendant) has filed both Grounds of Opposition as well as a Replying Affidavit challenging the veracity of the Motion. In the Replying Affidavit filed on its behalf by its Operations Manager Alex Mwikia, the 2nd Defendant asserts that both the suit and the Motion have been filed in contravention of the provisions of the Companies Act 2015 and Order 9 Rule 2(C) of the Civil Procedure Rules.

5. The 2nd Defendant avers that it is lawfully contracted to collect cess and parking fees in Kilifi County by reason of an agreement dated 4th July 2014 executed with the 1st Defendant and that under the provisions of the Kilifi County Finance Act, 2018, the 1st Defendant is mandated to collect such cess fees. The 2nd Defendant further asserts that by virtue of the said Act, the 1st Defendant is mandated to charge and impose cess fees on all excavations and transportation into and out of any land whether privately owned or public.

6. The 2nd Defendant further avers that the Plaintiff’s parcel of land is vast stretching along both sides of Mombasa-Nairobi highway at Mazeras and that the same is of a mountainous and uneven character. The 2nd Defendant avers that the Plaintiff has been excavating and transporting ballast, boulders, soil and gravel from the land but has been refusing to pay cess for its activities all which are cessable under the Kilifi County Finance Act, 2018.

7. The 2nd Defendant further avers that it has resorted to clamping the Plaintiff’s vehicles in an attempt to weigh the tonnage of each excavated load as the Plaintiff has been hostile and has refused to co-operate.

8. I have perused and considered the Plaintiff’s application and the response thereto by the 2nd Defendant. I have similarly perused and considered the submissions and authorities placed before me by the two parties.

9. The Plaintiff herein sought an order of injunction to restrain the hitherto two Respondents from entering its property, demanding cess payment therefrom and or clamping its motor vehicles and other equipment therein for the purposes of enforcing the cess levies charged. The Plaintiff told the Court that it is the registered proprietor of the suit property and that it has acquired all permits and necessary approvals to undertake development thereon. In that respect, it accused the Defendants of proceeding to create an illegal cess toll station within its private property.

10. Both the Defendants initially denied the Plaintiff’s allegations. However, on 5th December 2019, the County Government of Kilifi (previously the 1st Defendant) bolted out of the joint position and recorded a consent with the Plaintiff herein as follows: -

1. That the 1st Defendant/Respondent shall not demand, raise any further or future cess payment purporting to be a mining project in the Plaintiff’s property known as Plot No. 2028/MN/V situate at Mazeras Kilifi County;

2. That the 1st Defendant/Respondent shall instruct its agents, employees, servants and/or assigns to desist from impending development and/or in any other manner whatsoever disrupting the Plaintiff’s quiet possession and development of all that property known as Plot No. 1948/MN/V now known as Plot No. 2028/MN/V situate at Mazeras;

3. That the suit be and is hereby marked as settled between the Plaintiff and the 1st Defendant with no order as to costs”

11. It was rather unclear to me why that consent did not extend to the 2nd Defendant herein. I say so because from the pleadings filed, the main protagonists herein would appear to me to be the Plaintiff and the 1st Defendant. The 2nd Defendant is merely an agent engaged by the 1st Defendant towards fulfilling its purposes. The 2nd Defendant acknowledges this fact at paragraphs 9 and 10 of the Replying Affidavit sworn on its behalf as follows: -

9. That with respect to issues in this matter, under the Kilifi County Finance Act 2018, the 1st Defendant is mandated to charge and impose cess fees on all excavations and transportation into and out of any land, any soil, gravel, boulders, ballasts, murram, stone chips, sand and blocks regardless of whether the land is privately owned or publicly owned.

10. That the 2nd Defendant is the lawful entity duly contracted by the 1st Defendant for the collection of the cess fee as earlier submitted.”

12. Arising from the foregoing, it was clear to me that the 2nd Defendant could only proceed with the collection of the fees upon instructions issued by its principal- the 1st Defendant. Given that the said principal had by the first limb of the consent recorded herein on 5th December 2019 decided not to collect any such cess from the Plaintiff, the 2nd Defendant’s insistence to proceed with the same is akin to that stranger who arrived at a funeral of a person he did not know and nevertheless proceeded to weep louder than the bereaved themselves.

13. While one could say that the 2nd Defendant was keen in protecting the public interest herein, I was unable to find in its agency contract with the 1st Defendant where it could proceed to levy cess where the 1st Defendant had resolved to discontinue such pursuit. Neither was I able to find any provision under the Kilifi County Finance Act, 2018 which it cited to justify its actions against the Plaintiff.

14. As it were, it was not disputed by any of the parties herein that the suit property is private property belonging to the Plaintiff. It was also not disputed that the Plaintiff had resorted to construct a perimeter wall and to create pathways within the suit property. Such activities were bound to cause some displacement of soil and gravel on the property.

15. Given the 2nd Defendant’s admission that it had entered the suit property and clamped the Plaintiff’s motor vehicles and other earth-moving equipment, I am satisfied that the Plaintiff was bound to suffer loss and damage and that it is thus entitled to an order of injunction to protect its property from the invasion by the 2nd Defendant.

16. In the premises I am satisfied that there is merit in the Motion dated 22nd August 2019. I allow the same with the costs to be in the cause.

Dated, signed and delivered at Malindi this 29th day of January, 2021.

J.O. OLOLA

JUDGE