[2019] KEELC 2568 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

ELC NO. 62 OF 2018 (O.S)

IN THE MATTER OF LAND PARCEL NO. S. MALAKISI/ S.NAMWELA / 736 & 737

AND

IN THE MATTER OD SECTION 7, 17 & 38 OF THE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA AND ORDER 37 RULE 7 OF THE CIVIL PROCEDURE RULES

BETWEEN

JAMES BARASA MUKOLELI..............................................APPLICANT

VERSUS

DAVID LUSWETI WASIKE........................................1ST RESPONDENT

REUBEN MANYONGE MABONGA...........................2ND DEFENDANT

CONSEPTA NASIMIYU WEFWAFWA.......................3RD DEFENDANT

R U L I N G

According to the decree in BUNGOMA ENVIRONMENT AND LAND CASE NO. 47 OF 2012which involved CONCEPTA NASIMIYU (as Plaintiff) and JAMES BARASA MUKOKELI (as Defendant) over the ownership of land parcel NO S. MALAKISI/S. NAMWELA/736, that suit was determined on 20th September 2017 before HON. MUKUNYA J by consent. The terms of that consent were as follows:-

a: “The defendant be and hereby granted 45 days to pay the sum of Kshs. 50,000/= to the plaintiff.”

b: “In default, the defendant be evicted from the suit land S. MALAKISI/S.NAMWELA/736. ”

There is also a report by SAMSON ITONDE TUMBO an Auctioneer, showing that on 31st August 2018, the execution process was carried out peacefully. Both the decree (CN – 2), - 1 and the eviction report (CN – 2), are annexed to the Replying Affidavit of CONCEPTA NASIMIYU who is the 3rd defendant in this case.

JAMES BARASA MUKOKELI has now filed this suit against DAVID LUSWETI WASIKE (1st defendant), REUBEN MANYONGE MARONGA (2nd defendant) and CONCEPTA NASIMIYU WEFWAFWA (3rd defendant) seeking orders that he is entitled to orders that he has acquired by adverse possession 1. 5 acres out of land parcel NO S. MALAKISI/S. NAMWELA/737 registered in the names of the 2nd defendant and 2. 5 acres out of land parcel NO S. MALAKISI /S. NAMWELA/736registered in the names of the 3rd defendant.

Contemporaneously with this suit, the plaintiff also filed a Notice of Motion dated 13th November 2018 premised on Sections 1A, 1B, 3A and 63(E) of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, Section 71 of the Land Registration Actand Articles 48 and 50(1) of the Constitution seeking the following orders:-

1: Spent

2: Spent

3: That pending the hearing and determination of this suit, there be stay of further proceedings in BUNGOMA ENVIRONMENT AND LAND CASE NO 47 OF 2012.

4: Spent

5: That pending the hearing and determination of this suit, inhibition orders be issued restraining any dealing on land parcels NO S. MALAKISI/S. NAMWELA /737 and that the defendants or their agents be restrained from interfering with the peaceful occupation of the plaintiff on land parcels NO S. MALAKISI/S. NAMWELA/736 and 737.

6: Costs be in the cause.

The application is based on the grounds set out therein and is also supported by the plaintiff’s affidavit dated 13th November 2018. The gravamen of the application is that the plaintiff has been in peaceful occupation of the land parcels NO S. MALAKISI/S. NAMWELA/736and737(the suit land). Since 1995 and has put up houses and planted crops thereon. That although he had been sued in BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 47 OF 2012, the consent order therein was entered by his advocate without his consent. That he has no other home yet the defendants intend to evict him and sell the suit land. That had his advocate filed a counter – claim or fresh suit, he would not have had to file this suit. That he has a prima facie case and the defendants will not be prejudiced.

The plaintiff also filed another Notice of Motion dated 20th February 2019 citing Sections 3, 3A and 63(E) of the Civil Procedure Act, Order 40 Rules 1 and 2and Order 51 Rule 1 of the Civil Procedure Rules and Articles 48 and 50 (1) of the Constitution seeking the following orders:-

1: Spent

2: Spent

3: Spent

4: That pending the hearing and determination of this suit, the defendants their agents, nominees representatives and/or servants be restrained from entering and/or remaining, cultivating, evicting the plaintiff or causing destructions of the plaintiff’s property on land parcels NO S. MALAKISI/ S.NAMWELA /736 and 23.

5: That the Officer Commanding Malakisi Police Station (OCS)/County Commander Bungoma County do enforce the orders of this Honourable Court.

6: Costs of this application be in the cause.

The application is based on the grounds set at therein and is also supported by the plaintiff’s affidavit dated 20th February 2019.

The gravamen of this application is that he has been in occupation of the suit land for 24 years having purchased 4 acres from the 1st defendant out of the original parcel NO S. MALAKISI/S NAMWELA/ 283 in 1995 before it’s sub-division to give rise to the suit land. That the defendants are using all means to defeat this suit and on 16th February 2019 he was arrested and charged at the SIRISIA LAW COURTS with the offence of forcible detainer and the defendants hired goons to demolish his house and also ploughed his land as per copies of photographs (annextures JMB – IV and V).

Although the defendants have all filed replying affidavits, it appears that the 1st defendant is in support of the application.

The 1st defendant DAVID LUSWETI WASIKE in his replying affidavit dated 25th March 2019 has deponed that the original land NO S. MALAKISI/S. NAMWELA/283 belonged to his late grandfather PETER WEFWAFWA and also the father to the 3rd defendant. That after the death of his grandfather, he filed a succession cause and became the registered proprietor of the said land and sold 4 each acres to REUBEN MANYONGE MABONGA (2nd defendant) JAMES BARASA MUKOKELI (the plaintiff) and one JOB WENANI before migrating to Uganda. That it is within his knowledge that the plaintiff holds 4 acres of land and he was therefore shocked to learn from the plaintiff that the land parcel NO S. MALAKISI/S. NAMWELA/283 was transferred to the 2nd defendant. That the title in respect of the land parcel NO. S. MALAKISI/S.NAMWELA/283 was closed on 1st February 2008 to give rise to the suit land and that the plaintiff occupies the entire land parcel NO. S. MALAKISI/S. NAMWELA/736 registered in the names of the 3rd defendant and 1. 5 acres of the land parcel NO S. MALAKISI/S.NAMWELA/737 registered in the names of the 2nd defendant and is therefore entitled to the reliefs sought in his Originating Summons. That if the land was still registered in his names, he would have transferred 4 acres to the plaintiff who paid him consideration on 30th December 1995. That the 2nd defendant who was also a purchaser like the plaintiff has now turned against the plaintiff and should transfer 1. 5 acres out of land parcel NO S. MALAKISI/S. NAMWELA/737 to the plaintiff. The 1st defendant deponed finally that the plaintiff’s applications dated 13th November 2018 and 20th February 2019 should be allowed as prayed.

REUBEN MANYONGE MABONGA the 2nd defendant in his replying affidavit dated 20th March 2019 deponed that he is the registered proprietor of the land parcel NO S. MALAKISI/S.NAMWELA/737 and that the plaintiff is not occupying any part thereof. That both applications dated 13th November 2018 and 20th February 2019are frivolous, incompetent and an abuse of the process of the Court. That an injunction being an equitable remedy, the plaintiff has not come to Court with clean hands.

The 3rd defendant CONCEPTA NASIMIYU WEFWAFWA also opposed the application and referred the Court to BUNGOMA ENVIRONMENT LAND CASE NO 47 OF 2012in which the plaintiff was ordered to be evicted from the suit land. That the 1st defendant had no capacity to sell the suit land to the plaintiff and so the land was voluntarily transferred back to her and the 2nd defendant. That the application seeking inhibition and injunction orders cannot be granted and this case is res – judicata.

In a further affidavit dated 8th April 2019, the plaintiff averred that although eviction orders were issued against him in BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 47 OF 2012, his prescriptive rights under adverse possession had already crystallized as he has been in occupation of the suit land since 1995. That with respect to the land parcel NO S. MALAKISI/ S.NAMWELA/736, time only stopped running when the defendant filed BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 47 OF 2012 but by that time, the 12 years period provided by law had lapsed. That this suit is not res – judicata as he has never filed any suit against the defendants. That as of now, one cannot tell whether his houses are on land parcel NO S. MALAKISI/ S.NAMWELA/736or 737 unless a survey is done and his suit has high chances of success and will be rendered nugatory unless the two applications are allowed.

With the consent of the parties, the two applications were canvassed by way of written submissions which have been filed by MR WAMALWA instructed by FATUMA MUNGONI & COMPANY ADVOCATES for the plaintiff and MR KWEYU instructed by the firm of E. O. KWEYU & COMPANY ADVOCATES for the 2nd and 3rd defendants. The 1st defendant who is in person opted to rely on his replying affidavit.

I have considered the application, the rival affidavits and annextures thereto as well as the submissions by Counsel.

I shall first consider the plaintiff’s application dated 13th November 2018. It seeks two main prayers being:-

3: Stay of any further proceedings in BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 47 OF 2012 pending the hearing and determination of this suit.

5: That pending the hearing and determination of this suit, inhibition orders be issued restraining any dealing on land parcels NO. S. MALAKISI/S. NAMWELA/736 and 737 and the defendants be restrained from interfering with the plaintiff’s peaceful occupation of the land parcels NO. S. MALAKISI/S. NAMWELA/736 and 737.

With respect to the orders of stay of further proceedings in BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 47 OF 2012, I agree with the submissions by MR KWEYU that there being no appeal preferred against the Judgment in that case, that prayer cannot be granted. There is a final Judgment in BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 47 OF 2012 which was arrived at by consent of the plaintiff 3rd defendant herein. That case involved ownership of the land parcel NO S. MALAKISI/S. NAMWELA/736 as per the consent which I have already referred to at the commencement of this ruling. In the absence of any appeal against that consent, there would be no basis to stay any further proceedings in BUNGOMA ENVIRONMENT AND LAND CASE NO. 47 OF 2012. On the same basis, there would be no basis for issuing any inhibitory orders with respect to the land parcel NO S. MALAKISI/S. NAMWELA/736 as there is no pending dispute over it’s ownership.

But there is another hurdle that the plaintiff has not surmounted with respect to his claim to land parcel NO S. MALAKISI/S. NAMWELA/736and which, in my view ought to have been canvassed first as a Preliminary Objection.

In response to the two applications, the 3rd defendant has deponed in paragraph 8 of her replying affidavit as follows:-

“That I am further informed by my advocate on record which information I verily believe to be true that this suit is res – judicata.”

Res – judicata is provided for in Section 7 of the Civil Procedure Act as follows:-

“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court.”

It is common ground that the land parcel NO S. MALAKISI/S. NAMWELA/736 was the subject of BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 42 OF 2012 in which the 3rd defendant herein was the plaintiff and the plaintiff herein was the defendant. That suit, as I have already indicated above, was finalized through a consent recorded before MUKUNYA J on 20th September 2017 in which the plaintiff herein was to pay the 3rd defendant the sum of Kshs. 50,000/= within 45 days or be evicted therefrom. As I have already indicated from the report of SAMSON ITUNDE TUMBO AUCTIONEER, the plaintiff was evicted. Although the issue of adverse possession was not raised in that case, it may very well have been raised by the plaintiff herein as a counter – claim. Indeed in his supporting affidavit, the plaintiff concedes that he instructed his then Counsel to file an Originating Summons but the Counsel only filed a defence. This is what the plaintiff states in paragraphs 17 and 18 of his Supporting Affidavit:-

17: “That I instructed my advocate then KAKOI & ASSOCIATES ADVOCATES to defend me and proceed to file an O.S against the Respondents herein.”

18: “That unfortunately, my said Advocate filed only a defence but failed to file an Originating Summons. Hereto annexed and marked JBM 7 a copy of the defence.”

What the plaintiff is saying, and rightly so, is that he could have filed a Counter – Claim in BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 42 OF 2012, and indeed he instructed his Advocate to do so. However, that was not done. In the circumstances, the plaintiff cannot now mount any further claim on the land parcel NO S. MALAKISI/S. NAMWELA/736, which is the property of the 3rd defendant, on the basis of adverse possession because he should have raised it in BUNGOMA ENVIRONMENT AND LAND CASE NO 42 OF 2012 as Counter Claim. Explanation No 4 of Section 7 of the Civil Procedure Act states that:-

“Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.”

In BLACK’S LAW DICTIONARY 10TH EDITION, res – judicata is defined as:-

1: “An issue that has been definitively settled by judicial decision.”

2: “An affirmative defence barring the same parties from litigating a second law suit on the same claim, or any other claim arising from the same or series of transactions that could have been – but was not – raised in the first suit.”Emphasis added.

The plaintiff concedes, and rightly so, that he could have filed a Counter – Claim in BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 42 OF 2012 but his then advocate did not do so dispute instructions from the plaintiff. In HENDERSON .V. HENDERSON 1843 – 60 All E.R 378, the following statement is made with respect to res – judicata:-

“The plea of res – judicata applies, except in special case, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.” Emphasis added

There is no doubt that the plaintiff’s claim to land parcel NO S. MALAKISI/S. NAMWELA/736 “properly belonged” to BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 42 OF 2012 and, with “reasonable diligence, might have been brought forward” in that case as a counter – claim. That was not done due to the failure by the plaintiff’s then advocate to follow instructions.

The result of all the above is that the plaintiff’s suit as against the 3rd defendant is caught up by the doctrine of res – judicata.

In any event, he relinquished his claim to the land parcel NO S. MALAKISI/S. NAMWELA/736 through the Consent dated 20th September 2017. The plaintiff’s suit as against the 3rd defendant is struck out and in the circumstances of this case. I direct that each party meets their own costs.

With regard to the land parcel NO S. MALAKISI/S. NAMWELA /737, it is clear from the Certificate of Search that the said parcel is registered in the names of the 2nd defendant. As part of his documentary evidence, the plaintiff has availed photographs of what I believe must be himself and his family showing in the background homesteads and a crop of bananas – annextures JBM 4(a) (b) (c) (d) (e) and (f) . The 2nd defendant in his Replying Affidavit has deponed in paragraph 5 that the plaintiff does not occupy any part of the land parcel NO S. MALAKISI /S. NAMWELA/737 but no comment is made about the photographs in annexture 4(a) (b) (c) (d) (e) and (f). Then there is the Replying Affidavit of the 1st defendant which infact supports the plaintiff’s claim and in which the 1st defendant states at paragraphs 15 and 16 as follows:-

15: “That it is within my knowledge that the Applicant herein has peacefully continuously and without interruption been in occupation of the land in question for now 24 years”

16: “That the 2nd Respondent who was also a purchaser like the Applicant herein turned against the Applicant herein hence he should transfer 1. 5 acres comprised of L.R NO S. MALAKISI/S. NAMWELA 737 to the Applicant herein.”

The plaintiff seeks an inhibition order restraining any dealings with the land parcelNO S. MALAKISI/S. NAMWELA/737 pending the hearing and determination ofthis suit. Section 68(1) of the Land Registration Act empowers this Court to inhibit dealings with registered land. It states:-

68(1) “The Court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.”

An inhibition order, just like an injunction, is meant to preserve the property in dispute pending the determination of the trial. In granting it, the Court will take into account, several factors. OKWENGU J (as she then was) identified some of these in PHILIP MWANGI GITHINJI .V. GRACE MAKARIMA GITHINJI 2004 eKLR to include:-

1. Whether the property in dispute is at risk of being alienated to the detriment of the plaintiff.

2. Whether the refusal to grant the order of inhibition would render the applicant’s suit nugatory.

3. Whether the Applicant has an arguable case.

4. Whether the grant of the inhibition will prejudice the other party.

In the circumstances of this case, the plaintiff’s claim is premised on the pleading that he has been on the suit land for over 24 years. His claim is supported by the 1st defendant who sold him the land and received the full consideration. It is clear that the orders of eviction issued in BUNGOMA LAND AND ENVIRONMENT CASE NO 42 OF 2012 only related to land parcel NO S. MALAKISI/S. NAMWELA/736 belonging to the 3rd defendant. It did not relate to the land parcel NO S. MALAKISI/S. NAMWELA/737 belonging to the 2nd defendant and if that parcel is alienated to a third party and the plaintiff’s suit succeeds, it will have been an exercise in futility. The only prejudice that the 2nd defendant will suffer is that pending the determination of this suit, he will not be able to register any dealings on the land parcel NO S. MALAKISI/S. NAMWELA/737. It is prudent that the said parcel be preserved pending trial.

The prayer No. 5 in the plaintiff’s application dated 13th November 2018 also seeks an order to restrain the defendants from interfering with his peaceful occupation of the land parcel NO S. MALAKISI/S. NAMWELA/737. This is infact the same remedy of temporary injunction that the plaintiff seeks in the application dated 20th February 2019. The conditions for the grant of a temporary injunction pending trial are now well settled and the locus classicus is the case of GIELLA .V. CASSMAN BROWN & CO LTD 1973 E.A 358 where the Court identified them as follows:-

1. The Applicant must establish a prima facie case with a probability of success.

2. A temporary injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages; and,

3. If in doubt, the Court will decide such an application on the balance of convenience.

In determining what is a prima facie case, I will be guided by the Court of Appeal’s decision in NGURUMAN LIMITED .V. JAN BONDE NIELSEN & OTHERS C.A CIVIL APPEAL NO. 77 OF 2012 2014 eKLR where the Court held that an Applicant for a temporary injunction,

“ ………. Need not establish title, it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance, or as otherwise put, on a preponderance of probabilities.” Emphasis added

The Court went further to state that:-

“We reiterate that in considering whether or not a prima facie case has been established, the Court does not hold a mini trial and must not examine the merits of the case closely. All that the Court is to see is that on the face of it, the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case.” Emphasis added.

And in MRAO LIMITED .V. FIRST AMERICAN BANK OF KENYA LIMITED & OTHERS 2003 KLR 125, the Court defined a prima facie case as

“……… 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 to call for an explanation or rebuttal from the latter.”

Finally, as was held in FILMS ROVER INTERNATIONAL .V. CANNON FILM SALE LTD 1986 3 ALL. E.R 772, the Court considering such on application should take the course that appears to carry the lower risk of injustice should it turn out to have been “wrong”.

Guided by the above precedents, it is clear that the plaintiff did in 1995 purchase from the 1st defendant a portion measuring 4 acres from the original land parcel NO S. MALAKISI/S. NAMWELA/ 283 which was subsequently sub-divided to give rise to the suit land. A copy of the sale agreement is annexed to the plaintiff’s Supporting Affidavit and marked as JMBI 1. The 1st defendant has confirmed as much. Then there are the photograph of the houses which the plaintiff says he has put up on the suit land. While the plaintiff cannot now lay any claim to the parcel NO S. MALAKISI/S. NAMWELA/736 in view of the consent Judgment in BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 47 OF 2012, I am satisfied that he has established a prima facie case with respect to the parcel NO S. MALAKISI/S. NAMWELA/737 which is registered in the names of the 2nd defendant.

As to whether or not the plaintiff will suffer irreparable injury which cannot adequately be compensated by an award of damages, he has deponed that he has no other place to call home having lived on the suit land since 1995. To disallow his application would effectively render him homeless. Then there is the affidavit of the 1st defendant who has deponed, inter alia, that he sold the plaintiff 4 acres and that it is the 2nd defendant, also a purchaser, who has turned against the plaintiff. That would amount to a clear transgression of the law and I would associate myself with the words of WAKI J (as he then was) in MOHAMED .V. COMMISSIONER OF LAND & OTHERS KLR (E & L) 1 at page 217 that in such circumstances, no amount of damages would atone for such transgression.

Ultimately therefore and having considered the two applications dated 13th November 2018 and 20th February 2019, I make the following orders:-

1. The suit against the 3rd defendant is res – judicata and is struck out with no orders as to costs.

2. The prayer to stay further proceedings in BUNGOMA ENVIRONMENT AND LAND COURT CASE NO 42 OF 2012 is dismissed.

3. An order of inhibition be and is hereby issued directed at the Land Registrar Bungoma restricting any dealings with the land parcel NO S. MALAKISI/S. NAMWELA/737 until this case is heard and finally determined.

4. The 2nd defendant, his agents, nominees representatives servants or any other person acting on his behalf is hereby restrained from entering, remaining, evicting or causing destruction of the plaintiff’s property on land parcel NO S. MALAKISI/S. NAMWELA/737 until this case is heard and finally determined.

5. The plaintiff is directed to ensure that this suit is ready for trial so that it is determined within 12 months from today otherwise the order for injunction shall lapse.

6. Costs in the cause.

Boaz N. Olao.

J U D G E

11th July 2019.

Ruling dated, delivered and signed in Open Court this 11th day of July 2019 at Bungoma.

Mr. Wamalwa R for plaintiff present

Mr Kweyu for 2nd and 3rd defendants present

Plaintiff present

1st defendant present

2nd defendant present

3rd defendant present

Gladys – Court Assistant

Boaz N. Olao.

J U D G E

11th July 2019.