[2010] KEHC 3632 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU Civil Case 245 of 2009

JAMES NJUGUNA ……......................…..…..1ST PLAINTIFF/APPLICANT

JACKSON N. KIMUTA……............................2ND PLAINTIFF/APPLICANT

ESSAU KIPLANGAT…….........................…..3RD PLAINTIFF/APPLICANT

CATHERINE WAMBUI (suing as thelegal rep. of the Estate of thelate

CHARLES K. CHEGE)............................…....4TH PLAINTIFF/APPLICANT

VERSUS

MUNICIPAL COUNCIL OFNAKURU.......1STDEFENDANT/RESPONDENT

NATIONAL HOUSINGCORPORATION..2ND DEFENDANT/RESPONDENT

RULING

The applicants seeks to restrain the two respondents from trespassing upon, getting in, fencing, hindering access, remaining in or interfering with the applicants’ occupation, use and quiet possession of Plot Nos. NAKURU MUNICIPALITY BLOCK 15/B, C, D and G (suit plots) pending the hearing and determination of the suit herein.

It is the applicant’s case that they are the bona fide owners of the suit plots having been allocated the same by the 1st respondent (The Municipal Council of Nakuru); that they have been in occupation since 1997; that they have been paying rates to the 1strespondent; that the 1st respondent has unlawfully and fraudulently transferred the suit plots to the 2nd respondent (National Housing Corporation); that the 2nd respondent has now threatened the applicants with eviction; that should they proceed, the applicants stand to suffer irreparably.

The 1st respondent has denied those allegations maintaining that the application is bad in law, inept, incompetent and is an abuse of the court process; that the suit plots having been transferred and certificates of lease issued to the 2nd respondent no injunction can issue; that the allotment letters relied on by the applicants are ambiguous and were obtained fraudulently; that the allotment letters violate the law and the doctrine of “ex turpi non actio oritur cansa” (ex turpi cansa non oritur actio) – i.e a party does not have a right to enforce performance of an agreement founded on a consideration that is contrary to the public interest. How this has been done is not clear, though the 2nd respondent has averred that it conducted a search before entering into an agreement with the 1st respondent and was therefore not aware of the applicants’ interests; that the suit plots have now been transferred to it; that they cannot be restrained after the plots have been sold and transferred; that the applicants’ remedy is in damages against the 1st respondent; that the applicants have not fulfilled the conditions for the grant of an injunction. I have considered the foregoing arguments as well as the authorities cited in support thereof.

The suit plots have been transferred by the 1st respondent to the 2nd respondent in whose favour certificates of lease have been issued. It is also common ground that all the said certificates were issued on 21st October, 2009 when this matter was already in court. The test to be applied for a temporary injunction to issue is settled. The applicants must demonstrate that there is a prima facie case with a probability of success at the trial; secondly an injunction will normally not issue unless the applicants show that they stand to suffer injury that cannot be compensated by an award of damages. In case the court is in doubt, the matter must be decided on a balance of convenience. See Giella Vs. Cassman Bworn & Co. Ltd. (1973) EA 358.

At this stage, the court has not been asked to decide the merits of the applicants’ case but only to see if there is a prima facie case as defined in the case of Mrao Ltd Vs. First American Bank of Kenya Ltd. (2003) KLR 125. The applicants are relying on the fact that they have letters of allotment, that they have been paying rents to the 1st respondent and also that the 1st respondent has approved some development plans. The 1st respondent has dismissed the allotment letters as fraudulent and asserted that other than the 1st applicant who paid rates in 2000, the rest of the applicants have never paid rates. The 2nd respondent relies on certificates of lease issued under the Registered Land Act and asserts that its title is indefeasible. In other words, the contest in this matter is between the applicants’ letters of allotment and the 2nd respondent’s Certificate of Lease.

Without deciding with finality the question of who between the two groups is/are the legal owner(s) of the suit plots, I am persuaded that the 2nd respondent, being the holder of a Certificates of Lease issued under the Registered Land Act has a superior title. In consideration of the provisions of Sections 27 to 30 (inclusive) of the Act regarding absolute ownership of land by the registered owner, subject only rights spelt out in the Act, the applicants have not demonstrated what form of ownership is conferred by a letter of allotment. There is also no evidence that the letters of allotment were registered as required by Part X of the Government Land Act. Prima faciefraud has not been proved and in view of my finding that the 2nd respondent cannot be restrained for the reason that the suit plots are registered in its name, the balance of convenience is in its favour. The applicants can be compensated by an award of damages.

For these reasons, I dismiss this application with costs.

Dated, Signed and Delivered at Nakuru this 22nd day of January, 2010.

W. OUKO

JUDGE