[2014] KEHC 3313 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ENVIRONMENT AND LAND CIVIL CASE NO. 412 OF 2013

JAMES TONGI MIRUKA …………………………………………..……… PLAINTIFF

VERSUS

GEORGE MAUTI OMBACHO ……………………………………..………DEFENDANT

RULING

What I have before me is the plaintiff’s application that was brought by way of Notice of Motion dated 9th October 2013 under Order 40 rules 1, 2 and 3 of the Civil Procedure Rules, 2010 and article 40 and 43 of the Constitution of Kenya for the following orders:-

Spent.

Spent.

That an order of temporary injunction do issue restraining the defendant by himself or through his agents, servants and/or employees from entering into, alienating, wasting, cultivating, constructing, damaging, doing any activity on the plot or in any manner interfering with Plot No. 34 at Riosiri market in South Gucha District in Kisii (hereinafter referred to as “the suit property”) pending the hearing and determination of this suit.

That the costs of this application be provided for.

Any other relief the honourable court may deem fit and just to grant.

The plaintiff’s application was brought on the grounds set out in the body thereof and on the affidavit of the plaintiff that was sworn on 9th October, 2013. The plaintiff contended that he purchased the suit property from one, Jason Nyayiemi Omweri sometimes in the year 2008. He paid transfer fees to Nyamarambe Town Council and had the property transferred to his name. He has since then been paying plot rents for the suit property to Nyamarambe Town Council. He annexed to his affidavit; a copy of Plot Card dated 7th December, 2009 issued in his name by Nyamarambe Town Council, a copy of a receipt dated 19th February, 2009 issued to him for transfer and plot rent payments for the years 2007 and 2008 and, copies of receipts dated 10th February, 2011, 13th February, 2011 and 16th February, 2012 issued to the plaintiff for payments made for plot rents for the years 2009 to 2012.

The plaintiff contended that he has constructed temporary commercial premises on the front half of the suit property which he has rented out to tenants. The plaintiff contended that on 1st May 2013 while the plaintiff was on the suit property with masons and other workers whom he had engaged to erect for him a storey commercial building on the suit property, the defendant in the company of a gang of eight men armed with pangas, rungus, jembes and crude weapons trespassed into the suit property and while thereat, harassed and intimidated the plaintiff causing the said workers to flee.

The plaintiff reported the incident at Etago Police station which, led to the arrest of the defendant and one, Justus Omweri to assist the police with investigations. The two were released on police bond awaiting finalization of the said investigations by police. On 7th May 2013, the plaintiff brought in new workers to continue with the construction works on his storey building aforesaid. Undeterred by his earlier arrest, the defendant this time round brought in some workers to erect some temporary structures on the rear part the suit property thereby blocking the plaintiff’s access to the construction site and paralyzing the works as he could not take building materials such as bricks, sand, ballast and timber to the site. For the second time, the plaintiff made a report to Etago Police Station of the incident. When the police officers came to the scene, the defendant and the men he had hired fled. The plaintiff contended that he has severally asked the defendant to stop trespassing on the suit property and to remove the temporary structuresthat he had erected on the rear part of the suit property but the defendant has not heeded to his demand. The defendant contended that the defendant has no right over the suit property and that the defendant’s said unlawful activities has curtailed his right to exclusive and quiet enjoyment and use of the suit property.

The plaintiff’s application was opposed by the defendant. The defendant filed a replying affidavit sworn on 21st November 2013 in response to the application. In his replying affidavit, the defendant contended that he is the owner of Plot No. 34B measuring 25 feet by 100 feet at Riosiri Market within Nyamarambe Division in Gucha South District of Kisii County(hereinafter referred to only as “Plot No. 34B”)which he purchased from one, Justus Omambi Omweri. The defendant contended that the said Justus Omambi Omweri and Jason Nyanyiemi Omweri who is said to have sold the suit property to the plaintiff are the sons of the original owner of the suit property one, Richard Omweri (deceased). The defendant contended that Jason Nyanyiemi Omweri and Justus Omambi Omweri were entitled to a half share each of the suit property which measures 50feet by 100feet. The defendant contended that Jason Nyanyiemi Omweri sold to the plaintiff his share of the suit property measuring 25feet by 100 feet which he referred to as Plot No. 34A while Justus Omambi Omweri sold to the him (defendant) the remaining 25 feet by 100 feet which he referred to as Plot NO. 34B.

The defendant contended that the Plot Card which has been exhibited by the plaintiff in proof of his ownership of the suit property is a forgery as there are no extract of minutes both from the planning committee and the full council meeting to back it up. The defendant contended that no succession had been done with respect to the estate of Richard Omweri (deceased) and as such there is no way his property could have been disposed of to the plaintiff by Jason Nyanyiemi Omweri. The defendant contended that the dispute over the suit property between the two brothers started way back in the year 2009 and that the town council of Nyamarambe had resolved the issue by subdividing the suit property into two portions of 25 feet by 100 feet for the two sons of the Richard Omweri and this explains the two numbers (34A and 34B). The defendant contended that he has also been making payments to Nyamarambe town council for rent for Plot No. 34B. The defendant contended that the plaintiff has failed to meet the conditions for granting the injunction sought.

The defendant denied that he has trespassed on the plaintiff’s parcel of land and contended that it is the plaintiff who has trespassed on his share of the suit property which measures 25 feet by 100 feet. On 21st November, 2013, the advocates for the parties agreed to argue the plaintiff’s application by way of written submissions. The written submissions by both parties were duly file and the same are on record.

I have considered the plaintiff’s application and the defendant’s replying affidavit filed in opposition thereto. I have also considered the rival submissions by the advocates for the parties and the case law cited. This being an application for injunction the only issuesthat I need to determine are whether the plaintiff has established that he has a prima facie case against the defendant with a probability of success and that he will suffer irreparable harm unless the order sought is granted. In the event that I find the plaintiff’s case doubtful, I would determine the application on a balance of convenience. These are the principles that were pronounced in the case of Giella –vs- Cassman Brown Ltd 1973 E. A 358.

In the case of Mrao –vs- First American Bank of Kenya and 2 others [2003] KLR 125, a prima facie case was described as follows:-

“a prima facie case in a Civil application includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal property 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. “

I am satisfied on the material before me that the plaintiff has established a prima facie case with a probability of success against the defendant.The plaintiff has placed before the court a Plot Card for the suit property issued by Nyamarambe Town Council as evidence that the plaintiff is the owner of the suit property. The plaintiff has also placed before the court copies of several receipts for the payments that the plaintiff has made over the years to Nyamarambe Town Council on account of plot rent for the suit property. The defendant has contended that the Plot Card that has been presented to court by the plaintiff is a forgery and that it had been declared so by Nyamarambe Town Council. The defendant did not place any evidence before the court in support of these allegations. Although the defendant had referred to several exhibits in his replying affidavit, none of the said exhibits were annexed to the said affidavit. I therefore have nothing before me which casts doubt on the Plot Card that was produced herein by the plaintiff. The defendant has also not commented on the receipts that were produced by the plaintiff for the plot rent payments that the plaintiff has made to Nyamarambe Town Council over the years. I wonder how Nyamarambe Town Council would continue receiving plot rent from the plaintiff if his ownership of the suit property was fraudulent. To sum up on this issue, I would like to observe that although the defendant has claimed that he is the owner of Plot No. 34B that he has contended be a sub-division of the suit property and that, he has been paying land rent to Nyamarambe Town Council in respect thereof, the defendant has not placed before this court a copy of his Plot Card and a copy of any receipt in proof of his ownership of Plot No. 34B and the payments of land rent for the said plot. I also have no evidence before me that the suit property was sub-divided into two and that that sub-division gave rise to Plot No. 34A and Plot No. 34B. Finally, I am of the opinion that even if the defendant is the owner of Plot No. 34B which he claims that the plaintiff has trespassed on, the defendant had no right to take the law into his own hands and try to forcefully take over the said parcel of land from the plaintiff. He had to follow the due process to obtain vacant possession.

On the issue of irreparable harm, I am also satisfied that the plaintiff stands to suffer irreparable harm unless the injunction sought is granted. The plaintiff has contended that he is in the process of constructing a storey building on the suit property and that the defendant has from time to time interfered with the said construction works by either chasing away the workers or blocking access to the construction site. If the injunction sought is not granted, the said illegal acts would continue and the plaintiff’s construction works would come to a halt subjecting him huge losses.

For the above reasons, I am satisfied that the plaintiff has satisfied the conditions for granting interlocutory injunction. The plaintiff’s application dated 9th October, 2013 is allowed in terms of prayer(c) thereof. The plaintiff shall have the cost of the application.

Delivered, signedanddatedatKISIIthis 7th dayof August, 2014.

S. OKONG’O

JUDGE

In the presence of:-

Mr. Ombachi h/b for Omwega for the plaintiff

Mr. Ondicho h/b for Sagwe for the defendant

Mr. Mobisa Court Clerk.

S. OKONG’O

JUDGE