[2013] KEHC 1682 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELC. CASE NO. 516 OF 2012

HELLEN WANGARI SAMUEL…………………..…………….…..PLAINTIFF

VERSUS

SIMON KAMAU MUNGA………………………….……….. 1ST DEFENDANT

ANTHONY WAWERU.……………………………………..2ND DEFENDANT

RULING

Coming before me for determination are two Notices of Motion. One is the Plaintiff’s Notice of Motion dated 14th August 2012 seeking for a temporary injunction restraining the Defendants/Respondents from entering, trespassing, alienating, encroaching, interfering and dealing with the Applicant’s parcel of land known as Plot No. D335 situate at Embakasi Ranching Company Limited (hereinafter referred to as the “Suit Property”) pending the hearing and determination of this application and suit. The other one is the 2nd Defendant’s Notice of Motion dated 30th October 2012 seeking for a temporary injunction against the Plaintiff/Respondent restraining her from entering, trespassing, alienating, encroaching, interfering and dealing with in anyway with the 2nd Defendant’s parcel of land known as Plot No. D85 situate at Embakasi Ranching Company Limited pending the hearing and determination of this application and suit.

The Plaintiff’s application is premised upon the grounds appearing on the face of it as well as the Supporting Affidavit of Hellen Wangari Samuel sworn on 14th August 2012 in which she stated that she is the legal owner of the Suit Property having bought it from one Miss Wambui Ndugire on 31st March 2010. In support of that statement, she attached a copy of an Non-member Certificate of Plot Ownership issued by Embakasi Ranching Company Limited and an allotment letter dated 28th November 2011 issued by the same company to the said Wambui Ndugire. She stated that she has been in possession of the Suit Property since the date of purchase when around September 2011, the Respondents maliciously and unlawfully destroyed her fence whereupon she made a report to the Ruai Police. She further disclosed that the police at Ruai conspired with the Respondents to charge her in court in Makadara Chief Magistrates Criminal Case No. 3739 of 2012 with the offence of destroying property belonging to the Respondents while it is the Respondents who destroyed her property.

The 2nd Defendant’s application is premised on the grounds appearing on the face of it and the Supporting Affidavit of Simon Kamau Munga sworn on 30th October 2012 in which he stated that the Plaintiff has trespassed on his Plot No. D85claiming that it is Plot No. D335. He further stated that he has been in ownership and possession of Plot No. D85 since 1982 when he bought it from one Gladys Nyokabi Ngugi. As proof of his ownership of the said plot, he produced copies of a Letter of Allocation of Plot D.85 by the Embakasi Ranching Company Limited dated 28th November 1982, a copy of a Share Certificate No. 10578 in his name dated 5th June 1987 and copies of various receipts. He disclosed that when he bought it, Plot No. D85 was vacant and he had it pointed out to him by the Surveyor of Embakasi Ranching Company Limited upon payment of the site visit fees. He further stated that about September 2011, the Plaintiff destroyed crops and the fence on his said plot resulting in the matter being referred to the police at Ruai and also the Board of Embakasi Ranching Company Limited which, upon reference to the Survey plan Map 1, concluded that the parcel of land was Plot No. D85 and that it belonged to him and that it was not Plot No. D335 as the Plaintiff was alleging. He further confirmed that the Plaintiff was charged with a criminal offence in Makadara Chief Magistrate Criminal Case No. 3739 of 2012 for destroying his fence and crops on Plot No. D85.

The abovementioned Applications are contested. The 2nd Defendant filed his Replying Affidavit dated 30th October 2012 in which he reiterated the statements he made in his application cited above. He further stated that upon considering this dispute, the Embakasi Ranching Company Limited said that the said Plot D335 is not in the Survey Plan Map 1. He further stated that upon doing thorough and deep investigations, the police established that the Plaintiff is the one who was trespassing upon his Plot D.85 leading to the charges of trespass and malicious damage being imputed upon the Plaintiff in the criminal case facing her. He further confirmed that he has not changed the number of his plot, has not sold it or parted with its possession.

The Plaintiff also filed her Replying Affidavit sworn on 7th May 2013 in which she stated that she has never trespassed on the 2nd Defendant’s parcel of land known as Plot No. D85 as claimed. She also stated that she had also been shown the physical location of her parcel of land by a Surveyor of Embakasi Ranching Company Limited upon payment of the requisite fees. She also disputed that any meaningful investigations were conducted by the Embakasi Ranching Company Limited about this dispute. She further stated that the criminal case facing her was orchestrated by the 2nd Defendant to scare her from accessing her plot of land.

Both the Plaintiff and the 2nd Defendant filed their submissions which have been read and taken into consideration by this court in arriving at its finding herein.

In deciding whether to grant the temporary injunction, I wish to refer to and rely on the precedent set out in the case of GIELLA versus CASSMAN BROWN (1973) EA 358 in which the conditions for the grant of an interlocutory injunction were settled as follows:

“The conditions for the grant of an interlocutory 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 be normally granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

Has the Plaintiff made out a prima facie case with a probability of success? In the case of MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS (2003) KLR 125, a prima facie case was described as follows:

“a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a 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.”

Section 24(a) of the Land Registration Act provides as follows:

“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”

Section 26 (1) of the Land Registration Act states as follows:

“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –

On the ground of fraud or misrepresentation to which the person is proved to be a party; or

Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

Looking at the facts of this case, the Plaintiff has produced copies of various documents in its assertion of ownership over the disputed parcel of land. Even before I can go far, there is a dispute between the Plaintiff and the 2nd Defendant as to whether the disputed parcel of land is Plot No. D335 or Plot No. D85. With the evidence adduced so far, this court cannot, even on a prima facie basis, make a finding on this. The same will have to await resolution at the main hearing of this suit. On that basis alone, I am entitled to declare that neither the Plaintiff nor the 2nd Defendant have succeeded to establish a prima facie case with a probability of success. However, turning to the documents of ownership produced by the parties herein, it emerges that the documentation they are relying upon are documents issued by the 1st Defendant. However, the 1st Defendant did not respond to either of the two applications filed by the Plaintiff and the 2nd Defendant. This court has therefore been denied the clarification of ownership that the 1st Defendant would have given to assist the court in determining this dispute. Matters would have been much easier if either of the parties had produced a Certificate of Title issued by the Registrar as the law as cited above clearly allows this court to hold such document as prima facie evidence of ownership. In the absence of such Certificate of Title, this court finds that neither the Plaintiff nor the 2nd defendant have succeeded in establishing a prima facie case with a probability of success. Having found that this first condition of the Giella case has not been satisfied, I find no need in interrogating whether the other two conditions have been satisfied.

Arising from the above, I hereby dismiss the two applications. Let each party bear its own costs.

SIGNED AND DELIVERED AT NAIROBI THIS 1ST DAY OF NOVEMBER 2013

MARY M. GITUMBI

JUDGE