[2019] KEELC 1928 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT KISII

APPEAL NO. 4 OF 2019

HENRY OMWENO ONGORI.........................................APPELLANT

VERSUS

JOSEPH NYANDWARO alias

GEOFFREY NYANDWARO OBARA.........................RESPONDENT

J U D G M E N T

(Being an appeal from the Judgment and Order of Hon. M. M. Nafula, SRM issued in Ogembo PM ELCC No. 26 of 2018 dated on 13th February 2019)

1. This appeal arises from the ruling delivered by Hon. M. M. Nafula SRM in Ogembo PM Court ELC No. 26 of 2018 on 6th February 2019. By the ruling the learned Senior Resident Magistrate dismissed the Appellant’s application for injunction. In the ruling the learned trial magistrate inter alia held that even though the Appellant had demonstrated he was the registered owner of the suit property LR No. Majoge/Bombaba/3068 the Respondent had challenged the manner the Appellant had obtained the title. The trial magistrate observed that under Section 26(1) of the Land Registration Act 2012 title could be challenged on the ground of fraud or misrepresentation to which the person is proved to be a party or if it is shown the title was acquired illegally, unprocedurally or through a corrupt scheme.

2. The learned trial magistrate was of the view that as the value of the suit property could be ascertained the Appellant could be compensated by way of damages. Lastly the learned trial magistrate held that the balance of convenience tilted in favour of the respondent principally as she felt granting the interlocutory injunction would have meant the remains of the Respondent\s father would have remained unburied for a considerable period. Further, it was the learned magistrate’s view that granting the injunction would have amounted to having the Respondent evicted at the interlocutory stage.

3. The Appellant being dissatisfied by these findings and/or holdings by the learned Senior Resident Magistrate has appealed to this Court on the grounds set out in the Memorandum of Appeal dated 14th February 2019 as hereunder:-

1. THAT the learned Senior Resident Magistrate erred in law and fact in dismissing the Appellant/Plaintiff’s application dated 11th September 2018 which sought for temporary injunction as the Appellant had satisfied the principles for grant of the same.

2. THAT the learned Senior Resident Magistrate’s findings are not supported by the evidence stated in the two supporting affidavits of the application of the Appellant and their annextures thereof and the findings constitute misdirection and wrong conclusions.

3. THAT the learned Senior Resident Magistrate erred in law and fact as her conclusions are contrary to law.

4. THAT the learned Senior Resident Magistrate erred in law and fact by failing to make a finding that the Respondent who had not filed defence to the Appellant’s claim had not raised strong defence or had no defence with triable issues and therefore proceed to allow the Appellant’s application for temporary injunction.

5. THAT the learned Senior Resident Magistrate’s ruling constitute misapprehension of the law as to the grant of temporary injunction.

6. THAT the learned Senior Resident Magistrate’s ruling as wrongly concluded the entire case at the interim stage and has in fact given the Respondent the authority to evict the Appellant’s parcel of land.

7. THAT the learned Senior Resident Magistrate’s findings and ruling amounts to sanctioning the illegal acts of the Respondent.

8. THAT the findings and conclusions of the learned Senior Resident Magistrate are not supported by the evidence on record.

4. A brief review of the facts of the Appellant’s case before the subordinate court will suffice in order to contextualize the appeal before this Court. As per the amended plaint dated 22nd October 2018 filed in Court on 23rd October 2018, the Appellant averred that he was the registered owner of land parcel Majoge/Bombaba/3068 which he purchased from James Nyandwaro and Robert Okari Obara sometime in 2009. The Appellant stated that he took possession of the property and commenced development of the same by planting tea, gum trees and other types of trees. The Appellant stated following the passing on of James Nyandwaro, the son who is the present Respondent in the appeal unlawfully invaded the suit property and cut down the Appellant’s trees and commenced construction of a house on the land using the trees. The Appellant in the suit before the subordinate court sought an order of permanent injunction restraining the Respondent from in anyway interfering with the suit land and a declaration that he solely owned the land and was entitled to its exclusive use.

5. Simultaneously with the plaint the Appellant filed a Notice of Motion under certificate of urgency seeking an order of temporary injunction restraining the Respondent from interring the remains of his late father James Nyandwaro, in the suit land. Although the record does not show that the Respondent filed any defence to the plaint, the Respondent filed a replying affidavit in opposition to the Appellant’s application for injunction. The gist of the Respondent’s response was that the suit property the Appellant was claiming to have purchased was ancestral land and that any purported transfer could only have been procured through collusion and/or through fraud. The Respondent averred that they were entitled to bury their deceased father on the suit land.

6. The learned trial magistrate determined the injunction on the basis of the balance of convenience holding that the same tilted in favour of the Respondent considering the Respondent had possession.

7. This Court sitting as an Appellate Court of first instance is obligated and under a duty to reappraise and reevaluate the evidence before the lower court and to come to its own conclusions having regard to the evidence (See Selle -vs- Associated Motor Ltd Company [1968] EA 123). In the case the East African Court of Appeal stated:-

“…This Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. In particular this court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

8. In the present appeal, the Appellant has generally alleged that the trial magistrate erred in the findings and the conclusions that he came to and further misapplied the principles for grant of and/or refusal to grant an interlocutory injunction. As no oral evidence was taken before the trial court this court has to reconsider and re-evaluate the affidavit evidence together with the documentary evidence that had been placed before the Court.

9. The undisputed fact was that the Appellant was registered as owner of land parcel Majoge/Bombaba/3068 as per the copy of title and copy of search exhibited before the trial court as “H00-01(a) and (b)” respectively. The Appellant’s position was that he had purchased the land from the Defendant’s father and two other persons (Robert Okari Obara and Onyangore Omwange) and that the three portions he bought were combined to form land parcel Majoge/Bombaba/3068. The Respondent’s position was that the land the Appellant claimed to have purchased from the deceased was ancestral land and that any transaction affecting land parcel Majoge/Bombaba/906 out of which land parcel Majoge/Bombaba/3068 or part of it was hived must have been fraudulent. Both the Appellant and the Respondent claimed to be in occupation of the suit property.

10. On the basis of the facts as set out in the pleadings and the affidavits sworn by the parties the ownership of land parcel Majoge/Bombaba/ 3068 was in dispute even though the Appellant was registered as owner. The Respondent’s contention was that the registration of the Appellant as the owner must have been obtained fraudulently. The trial magistrate rightly found that under Section 26(1) of the Land Registration Act, 2012 title held by a registered owner can be challenged on grounds of fraud or misrepresentation or if it shown that the title was acquired illegally, unprocedurally or through a corrupt scheme. However the registered owner must be shown to have been involved in the fraud or the illegal and unprocedural corrupt scheme that led to the creation of the title for such title to be successfully impugned. Fraud must be proved by evidence to the required standard that is higher than on a balance of probability though not as high as to be beyond a reasonable doubt as in criminal cases. In the present matter the trial magistrate could not properly make any finding as to whether the Appellant obtained the title fraudulently as that would have required oral evidence which could only have been offered at the trial.

11. As the fact of ownership of the land was in dispute and the fact of occupation was equally contested, the appropriate order that the trial magistrate should have made would have been for the parties to preserve the status quo and to accelerate the hearing and disposal of the suit on the merits. The ruling by the learned trial magistrate may have facilitated the burial of the Respondent’s father on the disputed land but what happens if upon hearing the suit on merit the land is determined to have been properly acquired by the Plaintiff? That would naturally trigger other proceedings to have the body of the deceased exhumed.

12. The essence of injunctive reliefs is to preserve the subject matter of the suit until the suit is determined. The Environment and Land Court Practice Directions paragraph 32 gives the judicial officers discretion to make orders for maintenance of status quo on terms. Paragraph 32 of the Environment and Land Court Practice Directions provides as follows:-

32. During the inter-partes hearing of any interlocutory application, where appropriate, parties are encouraged to agree to maintain status quo. If they cannot agree, after considering the nature of the case or hearing both sides the Judge shall exercise discretion to order for status quo pending the hearing and determination of the suit bearing in mind the overriding interests of justice.

13. In the circumstances and having regard to what I have stated hereinabove, I would allow this appeal and substitute the order dismissing the Appellant’s application for injunction with an order requiring the parties to maintain and observe the prevailing status quo until the suit pending in the Principal Magistrate’s Court at Ogembo is heard and determined. In specific terms no party shall sell, transfer or charge the property pending the hearing and determination of the suit. In the event the deceased was buried on the disputed land that position shall not be disturbed until the suit is heard and determined. Should the deceased not have been buried, he should not be buried on the disputed land until the suit is heard and determined.

14. The trial court shall endeavor to expeditiously hear and determine the suit to enable the rights and interests of the parties in relation of the suit property to be finally adjudicated.

15. There will be no order for costs of the appeal and each party will bear their own costs of the appeal.

JUDGMENT DATED, SIGNED AND DELIVEREDATKISIITHIS28TH DAYOFJUNE 2019.

J. M. MUTUNGI

JUDGE