[2015] KEELC 207 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT ELDORET

LAND CASE NO. 193 OF 2015

GRACE AKINYI..................................................................................................... PLAINTIFF

VERSUS

GLADYS KEMUNTO OBIRI.....................................................................1ST DEFENDANT

UASIN GISHU COUNTY GOVERNMENT............................................ 2ND DEFENDANT

R U L I N G

1. The applicant brought a Notice of Motion dated 6/7/2015 in which she seeks an injunction against the respondents restraining particularly the first respondent from interfering with Plot No. ELD/17/94/15A(3) Plot. 78 Zone S (suit land). The applicant contends that she is the beneficial owner of the suit land having bought it on 10/8/2010 from its lawful allotee Francis Gicharo Woota. That she has been paying rates to the defunct Eldoret Municipal Council until when the first respondent encroached the suit land without her permission.

2. On 1/4/2015, the applicant wrote a letter addressed to the second respondent bringing to its attention that there was someone interfering with the suit land with its authority. The second respondent moved to the suit land and started demolishing temporary structures which she had erected. It is on this basis that she filed this application contending that the Eldoret Municipal Council had permitted her to put up temporary structures which are now being demolished by the second respondent.

3. The first respondent has opposed the applicant's application based on her replying affidavit sworn on 14/7/2015. The first respondent contends that she is the lawful allotee of Plot No. ELD/17/94/15A Plot No. 78 Zone S A(1) measuring 0. 1 Hectares which is totally different from the suit land which is 0. 20 Hectares. The first respondent has been paying rates for her plot. When the applicant encroached on to her property in the year 2014, she notified the County Secretary of the second respondent. A committee was set up which scrutinized documents held by her as well as those held by the applicant. Upon conclusion of the meeting of the committee, it was resolved that the plot in contention belonged to the first respondent.

4. The second respondent opposed the applicant's application through a replying affidavit by Patrick K. Mutai the Chief Officer of Lands, Housing and Physical Planning at Uasin Gishu County Government. The second respondent contends that when a dispute between the applicant and first respondent arose, a committee was set up to scrutinize the documents held by the disputants. The committee went to the ground and held a meeting which scrutinized the documents of the two parties to the dispute. It was found that the plot in issue belonged to the first respondent whose documents were found in order. The applicant was unable to produce the documents in support of her claim. The name of the first respondent was on the land rates system of the second respondent, she had the evidence that she was paying rates, provided purchase documents from the defunct Council of Eldoret and her name was captured in a newspaper advertisement where rates defaulters were listed. The applicant was not able to produce any of those required documents.

5. I have carefully considered the applicant's application, documents in support thereof as well as the replying affidavits by the two respondents. The principles for grant of temporary injunction are now well set out. First an applicant has to demonstrate that he has a prima facie case with probability of success. Secondly, an injunction will not normally be granted unless the applicant might otherwise suffer loss which will not be compensated in damages. Thirdly, if the court is in doubt, it will decide the application on a balance of convenience.

6. In the instant case, the applicant is contending that she bought the suit land in 2010 from one Francis Gicharo Woota who was allotted the same on 8/12/1995. She annexed a copy of allotment letter issued to the said Francis Gicharo Woota. The plot alloted to Francis Gicharo Woota is ELD/17/94/15 A(3) Plot No. 78 Zone S. On the other hand, the first respondent produced a copy of allotment letter given to her. The allotment letter is dated 8/12/1995 and is in respect of Plot No. ELD/17/94/15A Plot No. 78 Zone S A(1). It is clear that the two plots are not the same. The allotment letters were given on the same date. The problem seems to be the position on the ground. Both parties seem to be claiming the same land on the ground. The applicant's land is said to be 0. 20 Hectares whereas that of the first respondent is 0. 1 Hectares.

7. The committee set up by the second respondent went to the ground. It is the second respondent who are in custody of documents pertaining to plots within its jurisdiction. The second defendant's agents deliberated on the case of the two disputants and found that the plot in contention belonged to the first respondent. Minutes of the meeting as well as the verdict of the second respondent as regards the ownership of the plot were annexed to the second respondent's replying affidavit.

8. The second respondent was demolishing structures built contrary to the Physical Planning Act. Though the applicant claimed that she had permission to put up temporary structures there was no evidence to that effect adduced or annexed to the supporting affidavit. I do find that the applicant has demonstrated that she has a prima facie case with probability of success given the circumstances of this case as put out by the respondents. The applicant has put up temporary structures on the disputed plot. These structures have already been demolished or were in the process of being demolished by the second respondent. I do not see what loss the applicant will suffer which will not be compensated in damages.

9. The first respondent is the one who has been in possession since the disputed plot was alloted to her in 1995. The applicant bought the disputed plot in the year 2010. Documents held by her do not support her case. The balance of convenience tilts in favour of the first respondent whose documents prima facie show that she is the lawful allotee of the disputed plot. I therefore find that the applicant's application for injunction cannot be granted. The same is hereby dismissed with costs to the respondents. The temporary injunction which had been granted is hereby discharged.

It is so ordered.

Dated, signed and dated at Kitale on this 30th day of September, 2015.

E. OBAGA

JUDGE

In the presence of Mr. Ingosi for Mr. Chemoyai for second defendant and the plaintiff and defendant.

Court Assistant – Winnie.

E. OBAGA

JUDGE

30/9/2015