[2022] KEELC 739 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. E004 OF 2020

JAMES MUNG’ARU & 56 OTHERS......................PLAINTIFFS

VERSUS

KAMULU HOUSING CO-OPERATIVE

SOCIETY LTD....................................................1ST DEFENDANT

MADUBAT TRADING COMPANY LTD…....2ND DEFENDANT

CHIEF LAND REGISTRAR….........................3RD DEFENDANT

ATTORNEY GENERAL ...................................4TH DEFENDANT

RULING

1. This Ruling is in respect of two Applications. The first Application is dated 23rd September, 2020 filed by the Plaintiffs while the second Application is dated 31st May, 2021 and filed by the 2nd Defendant.

THE APPLICATION DATED 23RD SEPTEMBER, 2020

2. The Application dated 23rd September, 2020 was filed by the Plaintiffs and sought the following orders;

a. Spent.

b. The Plaintiffs be allowed to serve this present Application and summons to enter appearance upon the 2nd Defendant by way of advertisement in a Daily Newspaper of wide circulation.

c. Spent.

d. The 1st and 2nd Defendants, their agents, be restrained from selling, sub-dividing, altering the scheme, disposing, further construction, adversely dealing with and or interfering in any way with the Plaintiffs access to their respective plot within the parcel of land known as L.R. 8485 registered in the name of the 1st Defendant pending the hearing and determination of the suit.

e. The County Commander Machakos to assist the enforcement of orders herein.

f. The costs of this Application be provided for.

3. The Application is supported by the grounds of its face as well as the affidavit of JAMES MUNG’ARU the first Plaintiff in this matter. The Applicants aver that they purchased plots in L.R. 8485 registered in the 1st Defendant’s name which cumulatively measures approximately 2,034 acres and the same is situated between Kangundo road to Katani area in Machakos County; that allotment letters were issued to the Plaintiffs by the 1st Defendant while the Plaintiffs paid to the 1st Defendant fees for transfer, beacons and titles; that hence the Plaintiffs are proprietors of their respective purchased plots; that the 1st Defendant failed to complete transfer of the purchased plots to the Plaintiffs and also failed to protect the purchased property from trespassers and that the 2nd Defendant has with the connivance of the 1st Defendant encroached on the Plaintiffs’ plots and constructed a mosque, office premises, residential quarters and drilled a borehole.

4. The Plaintiffs further state that the 2nd Defendant has placed people on the suit property to harass and threaten the Plaintiffs and hence preventing them from peaceful enjoyment of their property and therefore the Plaintiffs need police assistance in enforcing orders of the court as the land falls between jurisdictions of several police stations.

5. The Plaintiffs also contend that the 2nd Defendant’s offices and whereabouts of their Directors are not known and their representatives are hostile, making it necessary that they be served by advertisement in a newspaper.

6. On 29th September, 2020, this court certified the Application herein as urgent, granted the Plaintiffs orders allowing them to serve the instant Application and Summons to enter appearance upon the 2nd Defendant by way of advertisement in the Daily Newspaper of wide circulation and granted temporary injunction against the 1st and 2nd Defendants in the interim until 13th October, 2020. In the said order, the Respondents were granted leave to enter appearance within fourteen (14) days of the date of advertisement.

7. The Application is opposed. The 1st Defendant filed a replying affidavit sworn by AUGUSTIN N. MUTUKU on 30th October, 2020 where he deposed that the suit property belonged to the 1st Defendant who acquired it in the year 1994 and was registered as proprietor thereof on 30th June, 2003; that the Plaintiffs though not members of the Society had acquired their plots from legitimate members of the 1st Defendant; that the said property measures 2034 acres and was subdivided into 4000 plots for which members balloted and subsequently issued with letters of allotment through the 3rd Defendant; that members of the Society took possession of their plots; that the 1st Defendant surrendered the original title for L.R 8485 to the Director of Survey and obtained new survey scheme for the plots; that thereafter members were issued with letters of allotment by the 3rd Defendant; that the 1st Defendant filed ELC NO. 114 of 2018 against trespassers, some of whom were agents of 2nd Defendant; that the 2nd Defendant forged documents in respect of title L.R No. 8485 and receipts and therefore the 2nd Defendant is the trespasser who should be injuncted.

8. Further, the 1st Defendant filed a Preliminary Objection dated 9th October, 2020 contending that the suit offends Section 76(1) (a) (b) and (c) of the Cooperative Societies Act and this matter ought to have been referred to the Tribunal and therefore this court lacks jurisdiction to determine the suit, hence the Application and the suit ought to be dismissed with costs.

9. In response to the Application, the 2nd Defendant filed a replying affidavit sworn by one CHARLES KYALO a Director of the 2nd Defendant on 12th Otober,2020. They stated that the 2nd Defendant are the registered proprietor with title 0f all that land known as L.R 8485 I.R No. 10656 situate in Kamulu/Syokimau Machakos County measuring about 2034 acres; that the 2nd Defendant has diligently been paying rents and rates in respect of the suit land and have been in peaceful quiet possession until 8th September, 2020 when the Plaintiffs and their agents attempted to invade the land; that the 2nd Defendant is a stranger to the relationship between the Plaintiffs and the 1st Defendant; that the title attached to the Application is illegible and that the Plaintiffs’ invasion and trespass on the suit property is in breach of the 2nd Defendant’s right to property under Article 40 of the Constitution.

10. The 2nd Defendant further stated that they are apprehensive that unless the court restrains the Plaintiffs and their agents from trespassing on the suit property, the property will be wasted and the 2nd Defendant shall suffer substantial loss; that it is in the interest of justice that the interim orders issued on 29th September, 2020 be vacated and the case heard on merit as the orders were obtained through non-disclosure of material facts.

SUBMISSIONS

11. The Application was canvassed by submissions and on record are the Plaintiffs’ submissions filed on 10th February, 2021, the 1st Defendant’s submissions filed on 4th November, 2020 the 2nd Defendant’s submissions filed on 14th October, 2021 and the Plaintiffs’ submissions filed on 8th November, 2021 replying the 2nd Defendant’s submissions.

12. The Plaintiffs’ counsel submitted that the Plaintiff has established a prima facie case. Counsel contended that the Plaintiffs had proved that the 1st Defendant’s members had sold the suit land to the Plaintiffs which fact was conceded to by the 1st Defendant at paragraph 40 of their replying affidavit. Counsel pointed out that the Plaintiffs had produced sale and transfer documents as well as letters of allotments, which documents were not challenged by anyone.

13. Counsel further contended that the Plaintiffs had been in possession of their respective plots until recently when the 2nd Defendant prevented them from accessing their respective plots. Counsel emphasized that indeed, the 1st Defendant had supported the Plaintiffs’ claim and stated that the 2nd Defendant was a trespasser to the suit property, which means that the Plaintiffs have the necessary locus standi and proprietary interest in respect to the claim.

14. It was contended that both the 1st Defendant and the 2nd Defendant claim to have been issued with a title in respect of the same property and therefore it appears there is fraud by one party. Counsel argued that the 1st Defendant’s title having been issued first, then the 2nd Defendant’s title issued in 2018 is fraudulent. Besides, counsel stressed the fact that the 2nd Defendant had not shown any evidence of how they acquired the suit property from Dallo Investments Limited. Counsel averred that the rates payment by the 2nd Defendant were for a different property known as L.R 8485/2 and the 2nd Defendant had in suit ELC 114 of 2018 exhibited another title from what they have presented in this suit, which points to fraud.

15. Counsel also argued that the pictorial evidence of the 2nd Defendant’s activities that they were doing on the suit property demonstrated the need for injunctive orders in favour of the Plaintiffs. Counsel therefore argued that the Plaintiffs had satisfied the condition of having demonstrated a prima facie case.

16. On the question of the nature of injury likely to be suffered by the Plaintiffs, Counsel contended that the harm occurring against the Plaintiffs cannot be adequately compensated by damages. Counsel argued that as the Plaintiffs had been denied access to their plots, they could not enjoy the fruits of their proprietorship and thereof their constitutional rights to property under Article 40 of the Constitution had been violated.

17. Counsel argued further that the 2nd Defendant’s activities on the suit property will result in altering the suit land and hence no amount of damages may restore the same.

18. It was also the Plaintiffs’ counsel’s argument that the balance of convenience tilted in favour of the Plaintiff. Counsel contended that the trespassers had prevented the Plaintiffs from accessing their land. Counsel argued that unless an injunction is granted, the Defendants will continue to deal with the suit land adversely, which may make it extremely difficult for the Plaintiffs to recover the same.

19. Counsel concluded that as all the parties concede that there are people on the premises who continue to harass the parties, it is necessary that the police are involved to maintain peace.

20. Counsel for the 1st Defendant in opposing the Application submitted that the 1st Defendant was not guilty for failure to protect the suit property from invaders as they had swiftly filed ELC. NO. 114 of 2018 and obtained orders to preserve the property when the 2nd Defendant threatened to invade the suit property; that the 1st Defendant served the orders on the OCS Kamulu/Mlolongo for enforcement, pulled down illegal structures, hired security services; set aside land for construction of a police post at a cost of Kshs. 5,000,000/=; applied for 5 police officers to man the station; repulsed the 2nd Defendant and submitted all documents for processing of individual titles to the officers of the 3rd Defendant. Counsel argued that the 1st Defendant has no control over the 3rd Defendant’s pace of issuance of titles.

21. Counsel also contended that the 1st Defendant had discharged its obligations by obtaining the necessary approvals from Director of Surveys in relation to the subdivision of the suit property, allotting the property accordingly, securing the scheme and permitting individual members and those who purchased from members to develop their plots.

22. Counsel relied on Order 40 Rule 1 (a) and (b) of the Civil Procedure Rules to argue that the acts complained of by the Plaintiffs as against the 1st Defendant do not fall within the ambit of Order 40 Rule 1 and 2 of the Civil Procedure Rules.

23. It was contended for the 1st Defendant that the 2nd Defendant forged the 1st Defendant’s title L.R No. 8485, which it claims to have bought on 14th June, 2018 at an incredulous sum of Kshs. 20,000,000/= for 2034 acres, despite the fact that the 1st Defendant had obtained injunctive orders on 31st May, 2018. Counsel pointed out that the 2nd Defendant were in disobedience of the court orders issued since 2018. Counsel argued that the 2nd Defendant was guilty of forcible entry, interference, meting out violence, removing beacons and unlawfully redefining boundaries on an already surveyed, subdivided and allotted scheme to the members of the 1st Defendant

24. Reliance was placed on the case of Giella vs. Cassman Brown & Company for the proposition that the court can only issue a temporary injunction where the Applicant has proved that:

a. He has a prima facie case with a probability of success,

b. He will suffer irreparable damage which cannot be compensated by damages if the injunction is declined.

c. In the event of any doubt, the court should decide on the balance of convenience.

25. On the question as to whether the Plaintiffs have a prima facie case, counsel contended that they filed a Preliminary Objection on 14th October, 2020 where they argued that the Plaintiffs suit as against the 1st Defendant offends the provisions of Section 76 (1) (a) (b) and (c) of the Cooperative Societies Act as the matter ought to have been referred to the Tribunal and not this court. Counsel argued that in so far as their claim was ownership of the suit land as third party purchasers for value from the 1st Defendant’s members, they were barred by statute. Counsel cited the case of Joseph Muthuri IKinyua & 32 others vs. Co-operative Bank of Kenya & 14 others Meru HCCC No. 8 of 2018.

26. On the question as to whether the Plaintiffs stood to suffer irreparable damage, the 1st Defendant’s counsel argued that indeed, the Plaintiffs stand to suffer irreparable damage not capable of being compensated in damages if the injunction is declined; but that an injunction should issue as against the 2nd Defendant who were unlawfully interfering with the Plaintiffs’ claim.

27. On the question of the balance of convenience, counsel argued that the balance of convenience tilted in favour of the Plaintiff and the 1st Defendant as against the 2nd Defendant.

28. Counsel for the 2nd Defendant submitted that this court lacks jurisdiction as contended by the 1st Defendant hereinabove. Counsel relied on the cases of Owners of M/U Lillian “S” vs. Caltex Oil Kenya Ltd (1989) KLR 1and Sonyaco Housing Co-operative Society Ltd & 3 Others vs. South Nyanza Teachers Co-operative Savings & Credit Society & 3 Others (2020) eKLR.

29. Counsel further contended that the Plaintiffs had not established a prima facie case as against the 2nd Defendant. Counsel argued that under Section 24(a) of the Land Registration Act, the registered proprietor of land has absolute right of ownership over his land. Counsel argued that both titles of the Plaintiff and the 2nd Defendant were issued by the 3rd Defendant, and therefore at this interim stage, it is not safe to conclude that one of the parties has a fake title. Counsel argued that the 2nd Defendant is not a trespasser. Counsel cited the case of Ngorika Farmers Co-operative Society vs. John Kiarie & 2 Others, which I have considered.

30. Further, counsel contended that the Applicants had failed to disclose that they had carried out massive demolition of the 2nd Defendant’s property, hence they approached the court with unclean hands. Counsel therefore argued that the Plaintiffs have not demonstrated a prima facie case with a likelihood of success.

31. In addition, counsel argued that the Applicants had not demonstrated that they were likely to suffer irreparable damage should the injunction be declined. Counsel urged that the damage can be compensated as each plot owner has a distinct plot. Counsel argued that the Plaintiffs had not stated the injury they were likely to suffer that they had not suffered when the 2nd Defendant had been in charge of the suit property. Counsel relied on the case of East African Development Bank vs. Hyundai Motors Kenya Limited (2006) eKLR,which the court has considered.

32. On the balance of convenience, counsel argued that the same tilted in favour of the 2nd Defendant. Counsel placed reliance on the case of one Juma vs. Julius Totona (2007) eKLR and argued that as the 2nd Defendant was in occupation, the balance of convenience titled in their favour.

ANALYSIS AND DETERMINATION

33. I have considered, the Application, the responses, parties submissions cited authorities and the pleadings on record. The issues that arise for determination are;

a. Whether this court has jurisdiction to determine this matter and

b. Whether the Plaintiff/Applicants have met the threshold for grant of temporary injunction.

34. On the issue of jurisdiction, the Defendants have argued that by virtue of Section 76(1) (a) (b) and (c) of the Cooperative Societies Act, the jurisdiction to determine this matter is vested in the Tribunal. The said provision states as follows:

“If any dispute concerning the business of a Cooperative Society arise;

a) among members, past members and persons claiming through members, past members and deceased members; or

b) between members, past members or deceased members and the Society, its Committee or any officer of the Society; or

c) between the Society and any other Co-operative Society it shall be referred to the Tribunal.”

35. In the instant suit the dispute does not just concern the business of a Cooperative Society in respect of persons claiming through members. The 2nd Defendant having not been a member of the 1st Defendant means that the dispute is not just among persons claiming through members.

36. In my view, the dispute herein being a claim for land acquired from the members of the 1st Defendant and being allegedly trespassed upon by the 2nd Defendant cannot be termed as a dispute concerning the business of a Cooperative Society. It is my finding that this dispute falls outside the purview of Section 76 (a) (b) and (c) of the Cooperative Societies Act. I therefore find and hold that this court has jurisdiction to hear and determine this suit and especially because it falls within Article 162(3) (b) of the Constitution and Section 13 of the Environment and Land Court Act.

37. On whether the Applicant has met the threshold for grant of temporary injunction, the law governing grant of temporary injunction is provided in Order 40 Rule 1 of the Civil Procedure Rules as follows:

“Where in any suit it is proved by affidavit or otherwise-

a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree or

b) That the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit;

The court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”

38. It is clear that where there is a threat to the property subject of a suit, with the likelihood of the suit property being wasted or alienated by the Defendant with the consequence of defeating, obstructing or delaying execution of a decree that may be passed against the Defendant, then a temporary injunction may issue.

39. In the case of Giella vs. Cassman Brown (1973) EA 358, the conditions for grant of temporary injunction were stated as follows:

a) The Applicant must demonstrate a prima facie case with a probability of success.

b) The Applicant must demonstrate that he stands to suffer irreparable injury that may not be compensated by damages, if the injunction is declined.

c) If the court is in doubt, it ought to decide the application on a balance of convenience.

40. In the instant suit, the Applicants have stated that they purchased their respective plots from members of the 1st Defendant who is the registered proprietor of land known as L.R. 8485 measuring approximately 2034 acres. They have produced letter of allotments, sale agreements, receipts and the grant showing that the suit land was registered in the name of the 1st Plaintiff on 30th June, 2003. They allege that the 2nd Defendant has trespassed on their land. The 1st Defendant confirmed the Applicants’ allegations that the suit land is registered in the 1st Defendant’s name and that the Applicants purchased the same from the 1st Defendant’s members; and that the 2nd Defendant is a trespasser thereon.

41. On the other hand, the 2nd Defendant contended that they are the registered proprietors of the suit land having purchased the same from the previous owner thereof. They produced a copy of the grant, rates payment documents, and photographs showing possession of the suit land. As both 1st and 2nd Defendants parties have shown to be registered proprietors of the suit land, it is clear that one title must have been obtained illegally as one parcel of land can only have one title thereto. At this stage, without hearing the parties at trial, it is not possible to confirm whose title is genuine.

42. I also note from the Plaint that the Plaintiffs have sought for orders of vacant possession and eviction of the 2nd Defendant, their servants, agents and associates from L.R 8485. It appears that both parties are in possession of the suit land. It is therefore necessary that the suit property is preserved pending the hearing and determination of this suit.

43. In the premises therefore, I make the following orders:

a. That the status quo obtaining on land known as L.R No. 8485 in Machakos County as at 16th March,2022 be maintained so that there should be no eviction or invasion thereon and there should be no further development, construction, sale, alienation, charge, lease, transfer or any other dealings in any manner whatsoever in respect of the said property pending hearing and determination of this suit.

b. The County Commander Machakos to assist in the enforcement of orders herein.

THE APPLICATION DATED 31ST MAY, 2021

44. In the Application dated 31st May, 2021, the Defendant/Applicant sought for the following orders:

a) Spent.

b) Spent.

c) That pending the hearing and determination of this suit, the Honourable Court be pleased to grant an interim order restraining the Plaintiffs and the 1st Defendant by themselves, their servants and/or the agents from dispossessing, alienating or disturbing or in any way interfering with the Applicant’s suit property Land Reference Number 8485 situate in Mavoko Municipality in Machakos District.

d) That pending the hearing and determination of this Application there be a vacation of the Orders given by Hon. Justice O. A. Angote on the 13th day of October, 2020 and extended on the 26th April, 2021.

e) That the Honourable Court be pleased to order the Plaintiffs, 2nd Defendant and their members to repair and replace all the destroyed structures and beacons demolished from the Applicants property.

f) That the Honourable Court be pleased to restrain the District Commissioner the Area District Officer, OCS Mlolongo Police Station and the OCS Kamulu Police from interfering and meddling in the affairs of the suit property.

g) That the Machakos County Commissioner and the Machakos County Commander be asked to ensure compliance and enforcement of the orders.

h) That the costs of this Application be provided for.

45. The Application is supported by the grounds on its face and the affidavit of CHARLES KYALO a Director of the 2nd Defendant. He states that the 2nd Defendant is the rightful owner of the suit property; that the Plaintiffs have no ownership documents; that the 1st Defendant obtained orders of 13th October, 2020 by non-disclosure of material facts; that the 1st Respondent is in breach of the said orders; that the Plaintiffs destroyed beacons and the fence of the 2nd Defendant and that the Plaintiffs and the police have threatened to dispossess the Applicant of the suit land.

46. The Application is opposed. The 1st Plaintiff swore an affidavit dated 22nd June, 2021 and deposed that the Application is an abuse of the court process; that the question of who has title to the suit land is subject of the Plaintiff’s Application of 23rd September, 2020; that the 2nd Defendant has no Counter-claim; that there are no grounds to vacate the orders of 13th October, 2020; that the Applicant has been in contempt of the said orders; that none of the Plaintiff is engaged in constructions complained of.

ANALYSIS AND DETERMINATION

47. I have considered the Application, the affidavit in reply, together with submissions filed. The issue for determination is whether the Applicants are entitled to the orders sought. The Applicant has sought for orders of injunction. For a party to be entitled to an order of injunction, they must demonstrate that they have a prima faciecase with chances of success. The Defendant has not filed any Counter-claim against the Plaintiffs’ claim. I therefore hold that they have no suit upon which injunctive orders can be issued. As the order of 13th October, 2020 was issued in relation to the Plaintiffs’ Application dated 23rd September, 2020, the said prayer is overtaken as the said Application has been determined herein. Since the question of the genuine ownership of the suit land is yet to be determined, the order of repairing and replacing destroyed structures is declined.

48. Besides, the Applicant has sought for injunctive orders against the District Commissioner, Area District Officer, OCS Mlolongo Police Station and the OCS Kamulu Police Station. I note that the said persons are not parties to this suit. Besides, the 2nd Defendant has no suit upon which injunctive orders may be anchored. I therefore decline to grant orders of injunction against them.

49. In the premises, I find and hold that the 2nd Defendant’s Application dated 31st May, 2020 lacks merit and the same is dismissed with costs.

50. For avoidance of doubt, upon determination of the Applications dated 23rd September, 2020 and 31st May, 2021, this court makes orders as follows:

a) The status quo obtaining on L.R. No. 8485 in Machakos County as at 16th March, 2022 be maintained so that there should be no eviction or invasion thereon and there should be no further development, construction, sale, alienation, charge, lease, transfer or any dealings in any manner whatsoever in respect of the said property pending hearing and determination of this suit.

b) The County Commander Machakos, to assist in the enforcement of orders herein.

c) The Application dated 31st May, 2021 is hereby dismissed with costs.

51. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 16TH DAY OF MARCH 2022 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM

A. NYUKURI

JUDGE

In the presence of:

Mr. Onduso for 1st Respondent

Mr. Makhandia holding brief for Thuita Guandaru for Plaintiff

Mr. Bundi for 2nd Respondent

Ms Josephine Misigo – Court Assistant