[2017] KEELC 2578 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT NAIROBI

ELC NO. 805 OF 2016 CONSOLIDATED WITH ELC NO.806 OF 2016

GULED HOUSING COMPANY LIMITED................................1STPLAINTIFF

NARARASHI WHOLESALERS (AK) LTD...........................2ND PLAINTIFF

VERSUS

ACCRA TRADING CENTER LIMITED......................................DEFENDANT

RULING

I have before me two (2) applications for injunction. The first application was brought by Guled Housing Company Ltd. and Narashi wholesalers (AK) Ltd. who are the Plaintiffs in ELC No. 805/2016 (hereinafter referred to as “the Plaintiffs” for ease of reference) while the second application was brought by Accra Trading Centre Ltd. who is the Plaintiff in ELC No. 806/2016 (hereinafter referred to as “the Defendant” for ease of reference). The Plaintiffs’ application was brought by way of amended Notice of Motion dated 28th July, 2016. In the application, the Plaintiffs sought an injunction to restrain the Defendant from entering, trespassing upon, pulling down and/or removing structures or in anyway interfering with the ongoing construction of a boundary wall and improvements on all that parcel of land known as L.R No. 209/6497 (hereinafter referred to as “the suit property”) or in any way interfering with the Plaintiffs’ quiet possession of the suit property pending the hearing and determination of this suit. The application was brought on the grounds that the Plaintiffs obtained the requisite approvals from the County Government of Nairobi to construct a boundary wall on the suit property so as to protect the same from trespassers. Following the said approval, the 1st Plaintiff engaged a contractor to undertake the construction of the said wall. While the construction was in progress, the Defendant’s directors and employees in the company of hired goons unlawfully entered the suit property and demolished the said wall without any lawful cause and in the process injured the 1st Plaintiff’s employees and stole equipment and tools which were being used in the construction of the said wall. The Plaintiffs contended that the Defendant had threatened to continue with the acts of trespass aforesaid unless restrained by the court. In their affidavit in support of the application, sworn by Saleh Welli Aden Dahir, the Plaintiffs annexed among others, copies of approved plans for the said wall and a letter dated 5th April, 2016 from the Nairobi City County confirming the said approval. The Plaintiffs also annexed photographs showing the damaged wall.

The Defendant’s application which was filed in ELC No. 806 of 2016 was brought by way of Notice of Motion dated 13th July 2016. In the application, the Defendant sought a temporary injunction restraining the 1st Plaintiff, Accra Trade Centre Ltd. from constructing a perimeter wall on the public access road, erecting or causing to be erected any structure of whatsoever nature on the said access road, maiming, mutilating, defacing and/or destroying the said public access road bordering L.R No. 209/4349 (hereafter “Plot No. 209/4349”) and L.R No. 209/798 R (hereinafter “Plot No. 209/798R”) pending the hearing and determination of this suit. The Defendant also sought a mandatory injunction compelling the 1st Plaintiff to pull down the portion of the perimeter wall which it had already put up on the said access road and to reinstate the said access road in the same state in which it was prior to the said construction.

The Defendant’s application which was supported by the affidavit sworn by James Njuguna Ngururi on 13th July, 2016 was brought on the grounds that the Defendant is the owner of Plot No. 209/4349 while the 1st Plaintiff is the owner of Plot No. 209/798 R. The Defendant contended that Plot No. 209/4349 and Plot No. 209/798 R are adjacent to each other and are accessed through inner lanes and access roads which are public roads. The Defendant’s complaint is that the 1st Plaintiff has illegally converted the said lanes and access roads to its own use. The Defendant contended that following the 1st Plaintiff’s encroachment on the said lanes and access roads, it lodged a complaint against the 1st Plaintiff with the National Land Commission (NLC) for investigation and appropriate redress. The Defendant averred that the parties made representation before the NLC and the NLC reserved its decision on the complaint. The Defendant averred that while the parties were awaiting the decision of the NLC on the matter, the 1st Plaintiff commenced the construction of a perimeter wall around the said public access roads thereby seizing the same for itself and blocking access to the Defendants property (Plot No. 209/4349). The Defendant averred that the said wall has been erected by the 1st Plaintiff maliciously with the intention of frustrating the Defendant and its businesses. The Defendant averred that it had established a prima facie case against the 1st Plaintiff and also demonstrated that it will suffer irreparable harm if the orders sought are not granted. In its affidavit in support of the application, the Defendant annexed among others, a copy of its certificate of title for Plot No. 209/4349, a copy of a survey plan, Folio No. 63, Register No. 216 for the suit property, a copy of the submissions made by the Defendant before the NLC and photographs showing the wall that had been put up by the 1st Plaintiff. The Defendants’ application was opposed by the 1stPlaintiff through a replying affidavit sworn by Mohamed Hassan Maalim on 25th July, 2016.

The two (2) applications were argued together before me on 29th November 2016 when Ms. Lipwop appeared for the Plaintiffs and Mr. Otieno appeared for the Defendant. I have considered the two applications together with the affidavits filed in support of and in opposition thereto. I have also considered the submissions by the advocates who appeared for the parties and the authorities which were cited in support thereof. I will consider the two applications together as they are related and the determination of one, would dispose of the other.

The dispute between the parties revolves around the ownership of the parcel of land known as L.R No. 209/6497 (“the suit property”). The disputed perimeter wall is being put up around this property. The Plaintiffs have not denied that they are putting up the said wall. The Plaintiff have contended that the 1st Plaintiff is the registered proprietor of the suit property and that the said wall is being put up lawfully after the necessary approvals were obtained from the Nairobi City County. The Plaintiffs have denied that the suit property is a public road or a lane used to access Plot No. 209/4349 owned by the Defendant. In his replying affidavit sworn on 25th July, 2016 and filed in opposition to the Defendant’s application, the director of the 1st Plaintiff, Mohammed Hassan Maalim set out in detail the history of the suit property. The history of the suit property goes back to 1965 when the title was created. From the material on record, the suit property had changed hands several times before the same was transferred to the 1st Plaintiff by the 2nd Plaintiff on 14th December 2007. The original Grant No. I.R 20571 dated 28th January 1965 was surrendered to the Government of Kenya on 22nd May, 2001 in exchange for a new Grant No. I.R 86112dated 2ndJune 1999. Unlike the earlier Grant which prohibited development on the suit property and restricted its use to “a means of access to and from Land Reference Number 209/798”, the new Grant No. I.R 86112 did not have such restriction. The new Grant permitted development of shops, offices and flats on the suit property subject only to the approval of the Commissioner of Lands and the Local Authority. The Plaintiffs have placed evidence before the court showing that they obtained approval from the Nairobi City County to put up the wall in contention on the suit property.

On its part the Defendant has contended that the suit property is an access road which was reserved for use by the owners of Plot No. 209/4349 to access the said property. The Defendant has accused the Plaintiffs of grabbing a public road of access and rendering its property inaccessible. In proof of its case against the Plaintiffs, the Defendant annexed to the affidavit of James Njuguna Ngururi in support of its application, a certificate of title for Plot No. 209/4349 dated 8th September, 1953 together with a Deed Plan dated 22ndMay, 1953. The Defendant also annexed a survey plan, Folio No. 63 which gave rise to the said Deed Plan. From the said Deep Plan and Survey Plan, what is now the suit property was a 30 meter piece of land which ran adjacent to what was Plot No. 209/798R, Plot No. 209/4349 and Plot No. 209/3538. According to the Defendant, the position of the suit property on the ground should be as it was in 1953 when the Plot No. 209/3449 was created. The Defendant’s contention is that the land which is now comprised in the suit property is still a lane and should remain as such.

I have considered the rival contentions by the parties. It appears to me from the material on record that after Plot No. 209/4349 was created in the year 1953, the area was re-planned and a new parcel of land was created between Plot No. 209/798 owned by the 1st Plaintiff and Plot No. 209/4349 owned by the Defendant. This parcel of land was created in the area which was hitherto referred as a lane. In the circumstances, it is not true that the suit property is a lane or a public road as claimed by the Defendant. The lane was closed way back on 28th January 1965 when the suit property was created. Whether or not the closure of the lane and the creation of the suit property were carried out lawfully are issues which this court cannot determine in the present applications. The same will have to await plenary hearing. As I have stated earlier, as at the time the 1st Plaintiff acquired the suit property from the 2nd Plaintiff on 14th December, 2007, the suit property had changed hands several times and the title for the suit property had been in existence for over 40 years. The Defendant has not placed any material before me showing that the creation of the suit property was carried out unlawfully and that the Plaintiffs were involved in the illegality. On the evidence before me, I am satisfied that the 1st Plaintiff is the registered proprietor of the suit property and that the suit property is not a public road. I am also satisfied that the construction of a perimeter wall which the 1st Plaintiff was carrying out on the suit property was lawful. The 1st Plaintiff being the owner of the suit property had a right to deal with the same in whatever manner deemed fit. The perimeter wall being put up by the 1st Plaintiff was approved by the Nairobi City County. There is no evidence that the construction complained by the Defendant was being carried out in a manner injurious to the Defendant’s interest in Plot No. 209/4349. I have noted from Grant No. I.R 20571 annexed to the Replying Affidavit of Mohammed Hassan Maalim that the suit property was created in 1965 to serve Plot No. 209/798. There is no evidence that the Defendant used to access Plot No. 209/4349 through the suit property. Even if it is assumed, that the 1st Plaintiff was wrongfully putting up a wall on a public road as claimed by the Defendant, I am of the view that it was not open to the Defendant to forcefully enter the suit property and demolish the said wall. The Defendant cannot be a judge in its own cause.

For the foregoing reasons, I am satisfied that the Plaintiffs have established a prima facie case against the Defendant with a probability of success. I am also satisfied that the Plaintiff would suffer irreparable harm if the orders sought are not granted. The 1st Plaintiff risks being dispossessed of the suit property by the Defendant if the Defendant is not restrained from the activities complained of by the Plaintiffs. In view of the foregoing findings, the Defendant’s application must fail. The injunction sought by the Defendant has no basis. The Defendant has in my view not satisfied the conditions for granting a temporary injunction.

The upshot of the foregoing is that I find merit in the Plaintiff’s amended Notice of Motion dated 28th July, 2016. The same is allowed in terms of prayer 4 thereof. On the other hand, the Defendant’s application by way of Notice of Motion dated 13th July, 2016 is dismissed.

The Plaintiff shall have the costs of both applications.

Delivered and signed at Nairobi this 27th day of June, 2017

S. OKONG’O

JUDGE

Ruling Delivered in open court in the presence of:

Ms. Lipwop for 1st Plaintiff

Ms. Lipwop for 2nd Plaintiff

N/A for the Defendant

Kajuju Court Assistant