[2022] KEELC 6 (KLR)

HOPF v DIRECTOR OF SURVEY & 2 others; SAKAJA & 2 others (Interested Parties) (Environment & Land Case 4 of 2021) [2022] KEELC 6 (KLR) (4 May 2022) (Ruling)

Neutral citation: [2022] KEELC 6 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case 4 of 2021

FO Nyagaka, J

May 4, 2022

Between

GEORGE HOPF

Plaintiff

and

DIRECTOR OF SURVEY

1st Defendant

CABINET SECRETARY, MINISTRY OF LANDS HOUSING & URBAN DEVELOPMENT

2nd Defendant

ATTORNEY-GENERAL

3rd Defendant

and

JOHN SAKAJA

Interested Party

GEORGE ODERA

Interested Party

GODFREY OJILO

Interested Party

Ruling

1. The Plaintiff’s Application for determination is dated 03/02/2022. It was filed on 07/02/2022 and seeks the following reliefs:1. …spent2. That the intended interested parties/Applicants be enjoined in the suit as interested parties3. …spent.4. That this honourable Court be pleased to issue a temporary injunction against the Plaintiff/Respondent by himself, agents, servants and or assigns from continuing with the intended construction on the reserve area meant for excision to expand the existing access road on LR.2073/25 until hearing ad determination of the suit herein.5. That the costs of this application be provided for

2. The grounds of the Application were listed on the face of it and were largely echoed in the Supporting Affidavit sworn by John Sakaja sworn on 02/02/2022. I proceed forthwith to summarize and analyze the ground, facts and the law. From the facts of the Application, the deponent contends that he is a farmer and owner of land parcel No. LR. 2073/16 and 17 measuring 102 acres or thereabout. He says that he bought it from one European settler farmer, one James Canam, in 1980, and has been using it since then, now over 42 years.

3. The Applicant argued that the parcel of land has two public access roads measuring about 40 ft (12. 9 metres) wide which branch off from Webuye - Kitale road. He gave the beacons numbers that demarcate the roads. His deposition was that in 1952, a Government Surveyor carried out a subdivision of LR. 2073/11 to LR. 2073/22 into various parcels, which left LR. 2073/14/2 with a net size of about 56. 3 acres. In 1955 a private surveyor subdivided LR. 2073/14 into a further two parcels. This later subdivision ignored three (3) acres which had been set aside by the Government Surveyor for a road.

4. The Applicants contended that the title to land parcel No. LR. 2073/23 which was issued in 1992 was questionable since LR. 2073/14 was surveyed by the Government surveyor on 3/4/1952 and subdivided into other parcels.

5. The Applicants further argued that on 11/06/1994, the Plaintiff commissioned a private surveyor named Renes Enterprise who made a number of findings, to wit:-i.That the subdivision that resulted into land parcels LR. 2073/23 and LR. 2073/24 omitted the access road on both the northern side of the landii.The ground acreage for LR. 2073/23 is approximately 31. 7093 acresiii.The ground acreage excluding both roads on both sides is about 12. 20 Ha(30. 1462 acres).iv.Parcels Nos. LR 2973/23 and 2073/24 do not sit on the 56. 6.v.The net acreage of approximately 1. 55 acres allocated on the survey map have been excluded in the map to read 31. 7 acres.

6. The Applicants contended further that the subsequent survey maps had been altered contrary to that of the government surveyor. They then contended that the transfer of 31. 7 acres being comprised in LR. 2703/14 was erroneous and illegal since it included in its size the two roads of access hence denying the farmers in LR. 2703/15, LR. 2703/16 and LR. 2703/17 the access road. They summed the argument that the issue raised by the Plaintiff related to an encroachment of a road of access. That the issue had been extensively canvassed by the Court in Kitale Judicial Review Misc. Civil Application No. 2 of 2016 and nothing had been raised therein to warrant fresh litigation over the same.

7. The parties filed their written submissions as directed by the Court. They stated that the Respondent had trespassed onto a public utility. They annexed to the application a number of documents including survey maps to show the facts of their argument, photographs to show the road of access and extent of encroachment and a list of adjacent land parcel owners who used the access road encroached.

8. The Respondent filed a Relying Affidavit which he swore on 8/02/2022. He denied the land parcel No. LR. 2703/23 ever having been part of a public access road. He contended that his late father bought the land in good faith and for value and transmitted it to him by way of a will of testament. He registered himself as the owner on 5/06/2020. He said that when the property was bought there was only a 6-meter road of access which the Applicants intended to increase or expand to 40 meters wide. He argued that he had sought an injunction against the Applicants. (This Court perused the Court file and found that indeed there was an application filed by the Respondent on 20/01/2021 which was dismissed on 03/03/2021. Thus, the Applicant’s argument is noted but neither here nor there since the issue was determined by the Court).

9. The Respondent argued that he and his family are entitled to the use of their land. He then argued that if there was an error on the map it should have been corrected within twelve (12) months of submission of the map to the Director of Survey. He challenged the Applicant’s contention that they had an identifiable stake in the matter or shown that they would be affected by any order of the Court or that their interest would not be adequately articulated by the defendants. He then argued that the defendants would ably answer to the issues in the matter hence no need for enjoinment of the applicants as interested parties. He stated that the Applicant’s submissions would be a replica of those of the defendants. Lastly, they challenged the application for injunction terming it as unmeritorious.

10. In the submissions the Applicants stated that they ought to be enjoined and the application granted because the excision of the access road was to be done on many other parties’ parcels of land and not the Plaintiff’s only. The then submitted that they were protecting their rights and those of many other persons who owned property within the area and who used the Kitale - Webuye road.

11. On the other hand the Respondent submitted that in terms of Order 1 Rule 10 of the Civil Procedure Rules, in case a person wanted to be enjoined in a suit as an interested party, he needed to show that his presence was necessary in the proceedings. The relied on the case of Skov Estate Limited & 5 others v. Agricultural Development Corporation and another[2015] eKLR. They also relied on the Supreme Court decision of Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 others [2015] eKLR and that of Francis Karioki Muratetu U another v. Republic & 5 others [2016] eKLR.

12. They then raised an objection to the Applicants’ prayer for injunction in that the Applicants sought the orders before being enjoined in the suit. They then submitted that the prayer was incompetent and defective. They also argued that the Applicants had not satisfied the principles of Giella v. Cassman Brown case.

13. I have considered the Application, the supporting affidavit, the affidavit filed in opposition, the submissions by the rival parties, the law and case law relied on. I find three issues for determination, namely:a.Whether the Application for joinder of interested parties is meritedb.Whether the applicants have satisfied the conditions for the grant of a temporary injunction.c.Who to bear the costs of the instant application.

14. I start the analysis and discussion by discussing the issues sequentially.(a)Whether the Application for joinder of interested parties is merited

15. The Applicants seek to be enjoined in this suit. It is instructive to note that before a party is enjoined in a matter, the court ought to satisfy itself that the proceedings are alive. That means that the suit must still be pending before the Court. Therefore, the applicant must move the Court during the pendency of the proceedings in that matter. Again, besides the proceedings being pending there should be not bar to them going on, so much so that if there are orders staying the proceedings then the party cannot move the Court since the proceedings are ‘frozen’ until the orders are lifted, vacated or set aside.

16. For the proposition that the proceedings must be pending, this Court relies on the cases of Florence Nafula Ayodi & 5 others v Jonathan Ayodi Ligure v John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others (applicants/intended interested parties) [2021] eKLR and Elizabeth Nabangala Wekesa v Erick Omwamba & 3 Others; Esther Momanyi Omwamba (applicant)[2021] eKLR. In the first case, this Court held that in case a party wishes to be enjoined in a matter, the case must be either be at “the nascent or other stages but must be alive.” In the second case, it was held that in case a party moves the Court to be enjoined as a party, “there is no doubt anymore that if a party wishes to be joined in a matter he or she must move the Court during the pendency of the proceedings in that matter… the main point is that it (suit) is still alive.”

17. Similarly, in Leonard Kimeu Mwanthi v Rukaria M’twerandu M’iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties) [2021] eKLR, Lady Justice Mbugua J stated, “A party claiming to be enjoined in proceedings must have an interest in the pending litigation…” From the facts of the instant case, this suit has neither been heard nor finalized. If anything, it is proceeding with applications at the interlocutory stage. Therefore, this stage is appropriate for the application of this nature.

18. It is worth noting that an application for joinder of an interested party may be made even at the appellate stage of the proceedings. The only condition to be met first is that the proceedings are still alive. The second point that the Court should take care of is that the proposed interested party should not use the procedure to institute a fresh suit, particularly if his application is made at the appellate stage.

19. On these two points I am guided by the holdings of the Court of Appeal and Supreme Court of Kenya respectively the following cases. The applicant in David Kiptugen v Commissioner of Lands, Nairobi & 4 others [2016] eKLR filed an application before the Court of Appeal to be enjoined as an interested party to the appeal and for remission of the matter back to the trial court for hearing de novo. The court allowed that application and held;“We agree with Ms. Kirui that whatever the outcome of the appeal, if the applicant is not joined in this appeal, he will be deprived of an opportunity to be heard on his claim to the ownership of the suit land. That will of course be unconstitutional and against the rules of natural justice.”

20. Second, in the case of Communications Commission of Kenya & 4 Others v Royal Media Services Limited, the Supreme Court in declining a similar application for joinder of an interested party held:-“The applicant now seeks to be enjoined in this matter, even though it was neither a party at the High Court nor at the Court of Appeal. The applicant has not demonstrated how the ends of justice would better be served by enjoining it in the appeal…We cannot exercise our discretion to enjoin a party that disguises itself as an Interested Party, while in actual fact merely seeking to institute fresh cause.”

21. This turns me to consider the provisions it was brought under. The Applicants moved the Court under Sections 3, 3A and 63E of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010 besides Order 40 Rule 1 which deals with injunctions. An exposition of the provisions relied on is worth the time of this Court. Section 3 of the Act is in relation to situations requiring the Court to exercise special jurisdiction. Joinder of parties is not one of them since the procedure has provisions what govern it: Order 1 Rule 10 is the starting point here. Section 3A refers to where the Court exercises its discretion based on its inherent powers to make any orders aimed at making the ends of justice to be met. Section 63E is about circumstances in which the Court may make interlocutory orders as they appear just and convenient in order to prevent the defeat of the ends of justice. As regards Order 51 Rule 1 of the Civil Procedure Rules it is relation to where applications are to be heard in open Court unless the Court otherwise directs.

22. It is clear from the pleadings of the Applicants and the discussion above that the Applicants did not cite the proper provisions under which the Application should have been brought. However, failure to cite the correct provisions is not fatal to the Application. In my view, that is a technicality may be cured by applying Article 159(2) (d) of the 2010 Constitution. Since the promulgation of the 2010 Constitution and the liberal interpretation of the provisions thereto, particularly the ones which give the Court power and liberty to administer justice more than placing reliance on technicalities, it is important that courts give them effect. Therefore, in considering the issue before me, I reproduce Article 159(2) (d) which provides that “[In] exercising judicial authority, the courts and tribunals shall be guided by the following principles-justice shall be administered without undue regard to procedural technicalities.” It means this Court shall wink at the Applicants’ failure to cite the proper provisions of the law.

23. The above notwithstanding, the law provides for applications for joinder of interested parties in matters. Order 1 Rule 10 of the Civil Procedure Rules, 2010 as amended in 2020 which provides for Addition of “a necessary” party. It provides that “The court may at any stage of the proceedings, either upon or without the application of either party,…order that…the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

24. The provisions cited give the basis for Applications for joinder of persons as interested parties. Moreover, in 2013, the procedure was clearly and firmly anchored in our Country’s Rules. Legal Notice No. 117 of 2013 titled as the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 which was Gazetted on 28th June, 2013 (referred to herein as the Mutunga Rules, 2013) provide for this procedure. Rule 2 of the Mutunga Rules, 2013 define of an interested party. The procedure on how one is to be enjoined is provided for in Rule 7. Under Sub-rule 1 of Rule 7 it is clear that “A person, with leave of the Court, may make an oral or written application to be joined as an interested party.” In that respect it means a person has first to move the Court. In case he so wishes, he should seek leave of the Court first. After the leave is granted, he will be enjoined. It is upon being give leave and he actually being enjoined that he can participate in the proceedings and move the Court for other reliefs. Absent of that, he is a stranger to the proceedings. However, once an order of joinder is given, the process of joinder is a mere formality. Constructively, he is a party from the time the Order is issued.

25. In the case of Francis Karioki Muruatetu & another v Republic & 5 others Petition No. 15 as consolidated with No 16 of 2013 [2016] eKLR, the Supreme Court set out guidance on the requirements for successful application for joinder as an Interested Party. In it the Court gave three principles to be followed. At paragraph 37 the Court stated that the Applicant(s) must show:(i)The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.(ii)The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.(iii)Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.

26. The Supreme Court, in Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 others [2015] eKLR stated basically the same principles - the applicant has to have a stake in the subject matter before the Court, he has to show that he will be affected by the decision of the Court, and that his interests will not be articulated well in his absence from the proceedings. Additionally, in Skov Estate Limited & 5 others v. Agricultural Development Corporation and another[2015] eKLR, my brother Judge Munyao emphasized the point that the applicant in an application of this nature must demonstrate that it is necessary that he/she be enjoined in the suit. That becomes important if he has to show that the issues before the Court cannot be effectively adjudicated upon in his absence. Being affected by the order of the Court is not enough. The Applicant must show that in addition to being affected the reliefs which will be granted will not be fully decided upon because an important element of fact, which he has, shall miss if he is not added to the proceedings.

27. It is against that backdrop that I now consider whether or not the Application herein meets the above conditions. The first question is whether or not the Applicants have a direct interest or stake in the proceedings in the instant case? This Court seems to thinks so for a number of reasons. First, is that the activities of the Plaintiff/ Respondent, particularly in closing the public road of access that allegedly has been in existence for over forty (40) years shall block them from accessing the main Kitale - Webuye road. Closure of the right of access through a road, which is proven to be true has direct implication on many rights that belong to the neighbours of the Plaintiff. Second, the Applicants indicate in their contention that they have been joined to other cases, namely Kitale ELC Pet. No 6 of 2019 and Kitale ELC. No. 4 of 2021 which apparently touch on the same subject and related parties because in one the Respondent sought to convert the reserved area to private property and in the other he sought to stop the excision of the road by the Director of Survey. The Applicants will be directly affected by the expected decision of this Court. That demonstrates a direct link to the present case. It then creates a direct interest by the applicants over the outcome of this case. On this point, I am guided by the holding in the Judicial Service Commission -vs- Speaker of the National Assembly & Another [2013] eKLR where the court stated that:“…an interested party …… is a person with an identifiable stake or legal interest in the proceedings hence may not be said to be wholly non-partisan as he is likely to urge the court to make a determination favourable to his stake in the proceedings.”

28. In regard to the Court being satisfied as to whether or not the Applicant has set out his case and/or submissions she intends make before it, and demonstrating that his case is not replica of what other parties have before the Court, I have looked at the documents attached to the Applicant’s Affidavit. They contain facts which are diverse from the ones raised by the other parties, and they are new and pertinent to the defendants’ case. The issues are clearly set out.

29. This Court is of the view that the proposed interested parties’ application has met the threshold set out in the Muruatetu case (Supra). Therefore, I allow the Application in terms of prayer (2) at this stage. Thus, this Court grants leave to the Applicants to be enjoined as Interested Parties in this suit.(b)Whether the applicants have satisfied the conditions for the grant of a temporary injunction

30. The Applicants pray for an injunction against the Plaintiff, particularly, that an order is issued stopping him from constructing an access road on or through LR.2073/25 until this suit is heard and determined. The grant of an injunction is an equitable remedy. It is granted on the basis of the exercise of discretion. But the discretion is to be exercised judiciously and not in a capricious manner. It therefore means that the Court will consider the facts of each case and weigh them against the law.

31. The conditions for the grant of an injunction were set out in the locus classicus case of Giella v Cassman Brown(1973) EA 358. The principles are enduring, given that fifty years after the decision was made they are as applicable as if made yesterday. In the case the court held that:“An applicant has to demonstrate firstly, that he has a prima facie case with probability of success. Secondly, an applicant has to show that he will suffer irreparable loss or damage if the interlocutory injunction is not granted, that is that an award of damages will not adequately compensate the damage. Thirdly, if the court is in doubt on the above 2 requirements, then it will decide the application on the balance of convenience.”

32. I will thus consider the Application under these heads:i.Do the Applicants have a prima faciecase?

33. The Respondents challenged the grant of the orders of injunction herein for the reason that the prayer was made by persons who had not been enjoined in the suit. From the application before me, the Applicants combined the prayer for enjoinment as interested parties together with that of injunction. To the Respondents, the prayer for injunction was therefore incompetent.

34. I have made an observation above that the proper procedure when a person not a party to a suit seeks to be enjoined as an interested party, he/she should seek leave fist and upon being granted the same, they join and apply for any reliefs they deem fit. That is the ideal situation. But how about when there is urgency and the danger of wasting the subject matter before the Court? In my view, under Article 159(2) (2) of the Constitution as read with Sections 3A and 63(e) of the Civil Procedure Act, there are situations where the Court, in a bid to do substantive justice, will give an exception to the procedure. An application for injunction is an equitable remedy granted discretionally and which requires that the parties in a suit (players in the theatre of justice) act with utmost good faith. This should be demonstrated by the parties. But where one of the parties comes to Court with unclean hands, the Court cannot sit back and fold hands in the scenario or arena of a procedure being followed. Rules of procedure are handmaids in the altar of justice. They are not masters of the people so as to lord it over them. They were brought into play to assist the wheels of justice to turn in an oiled manner. Where they seem to cause the wheels of justice to slide of the unity of the cog and the teeth, they will have to give way. Equity will not suffer a wrong without a remedy. In the present circumstances, the Respondent is said to have commenced the blocking of the road of access used by many people. Again, it has been demonstrated that he has resisted the existence of the road through other proceedings before the Court - namely - Kitale ELC. Pet. No. 6 of 2019 and Kitale ELC No. 4 of 2021. That being the case, there is a likelihood that at the slightest wink of the Court by insistence of enforcement of the rules of procedure at the expense of doing justice, greater harm may be done than good. In the circumstances, having found that the Application for joinder is merited and granted the leave for the (then) intended interested parties to be enjoined, it would be in the interest of justice that the subject matter herein be preserved by way of an order of injunction as prayed. The presence of the (then) intended interested parties in this suit has been given a go ahead by this Court. The filing of papers is only a formality. Equity will treat as done that which ought to be done and take it that having been granted the opportunity to participate in the proceedings, they are proper participants in it. Therefore, I will treat the prayer as being competent before the Court from the point prayer No. (2) of the instant application was granted and then I proceed to decide on the merits or otherwise of the Application, starting with whether or not the Applicants have a prima facie case.

35. A prima facie case was explained by the Court of Appeal in Mrao Limited -vs- First American Bank of Kenya Limited & 2 Others [2003] eKLR as follows:“So what is a prima facie case? I would say that in civil cases, it is a case in 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.”

36. It is clear to my mind that I am not conducting a mini trial to establish the merits of the case. All I need to ascertain is whether from the facts of the case before me the Applicants have made out a case on a balance of probabilities that there is a right infringed or about to be violated so as to form a basis for the need to protect it through issuance of an order of injunction. This Court, at this stage, only need to form an opinion as to the existence or otherwise of a violation of a right. As held by the Court of Appeal in Nguruman Limited -vs- Jan Bonde Nielsen & 2 others [2014] eKLR:“All that the court is to see is that on the face of the person applying for an injunction has a right which has been or is threatened with violation.”

37. The Applicants submitted that they are the registered proprietors of all those parcels of land namely LR. 2073/16, 2073/15 and 2073/15/9 all of which neighbor the Plaintiff’s land. They stated that they live on the parcels of land together with their families who number about fifty (40) people. Further, they stated that the Plaintiff’s activities of constructing on the road of access through the depositing of materials and blockage of the access road that the applicants and over 50 people use shall greatly affect them since they will be hindered from accessing the Kitale -Webuye road as before. Their case is that the access road has existed for over 40 years and its expansion had been initiated the Government Surveyor.

38. In light of the facts presented before me and the fact that the issues herein are closely related to those in Kitale ELC Pet. No 6 of 2019 and Kitale ELC. No. 4 of 2021, and more so that the road alleged to have been encroached onto is said to be a public road, and given that the Respondent indirectly seems to admit to the existence of inconsistency in the maps showing the positions on the ground when he states that of there were errors they should have been corrected within 12 months, I am of the view that the Applicants have made out a prima facie case with a probability of success.

39. Moreover, if the alleged public road is blocked it will affect the members of the public and the harm that may arise therefrom is great. In light of the above, I find that the Applicant has demonstrated that he has a merited case with a probable chance of success. For these reasons, and given that from the whole analysis of the facts before me the balance tilts in favour of the Applicants, I will grant the order of injunction as prayed.

ii. Will the Applicant suffer irreparable harm? 40. It is not disputed that the Respondent has commenced construction of a structure. There is evidence that he offloaded building materials that were also placed on the disputed portion of the property. I am persuaded that on these grounds alone, the Applicant will suffer irreparable harm that will not be adequately compensated by an award of damages.

41. I find that the Applicant has satisfied the first two conditions precedent for the grant of injunction. That, regardless, I still find that the balance of convenience shifts in favor of granting the injunction rather than denying it. This will enable the court determine the issue on the merits by upholding the doctrine of audi alteram partem. For the above reasons, the Application is merited.

(c) What orders to issue and who to bear costs of the instant application? 42. The upshot is that:a.An order is hereby issued that the intended interested parties/Applicants be enjoined in the suit as interested parties.b.A temporary injunction is hereby issued against the Plaintiff/Respondent by himself, agents, servants and or assigns from continuing with the intended construction on the road reserve area meant for excision to expand the existing access road on LR.2073/25 until hearing ad determination of the suit herein.

43. It is no longer an issue that the Application has been determined as successful. Costs always follow the event unless otherwise explained. In the instant case, it is inevitable that they do. I therefore grant the Applicants the costs of the instant application.

44. I also direct that the Applicant files and serves not only a Notice of Appointment as an Interested Party within the next five (5) days but also their pleadings within fifteen (15) days of this order. All parties have leave to file any amended pleadings, lists of witnesses together with witness statements and lists of documents together with copies thereof.

45. The parties are directed to ensure all their documents are in an indexed, paginated, cross-referenced statements and documents made into a trial bundle to be exchanged before the mention date. Any party having an objection to production of documents to strictly observe the Civil Procedure Rules and the Mutunga ones. The matter shall be mentioned on 02/06/2022 to confirm compliance.

Orders accordingly.Dated, signed and delivered at Kitale via Electronic Mail on this 4th day of May,2022. DR. IURFRED NYAGAKAJUDGE,ELC,KITALE.RULING KITALE ELC NO. 4 OF 2021 - D.O.D. - 04/05/2022 0