[2004] KEHC 232 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL SUIT NO. 186 OF 2004

JOSEPH KIAI CHEROTICH………………………..………PLAINTIFF

VERSUS

TIMSALES LIMITED………………………………….…..DEFENDANT

R U L I N G

The applicant filed an application dated 23rd June, 2004 praying for a

temporary injunction to restrain the respondent by itself, its agents and or

servants from cutting down trees, felling logs and trees remaining into or

dealing in whatever manner with the applicant’s parcel of land known as

NAKURU/MARIASHONI/719.

The applicant swore an affidavit in support of his application and deposed

that he was the registered absolute proprietor of the whole parcel of land as

aforesaid measuring 4. 2 Hectares and he annexed a copy of his title deed

which was issued to him on July 2nd, 1998. He further deposed that

sometimes in May, 2004 a group of people acting upon the instructions of

the Defendant entered into his aforesaid property and started cutting down

trees thereon indiscriminately. When he tried to stop them from cutting

down trees in his property the following day they came with other people

armed with guns to provide security as they cut down more trees and they

continued to do so until the applicant obtained temporary restraining orders

from this court.

The applicant lamented that the respondent’s acts amounted to trespass and

malicious damage to his property and so urged the court to grant the orders

as sought.

The respondent defended the said application and filed a replying affidavit

through one Mr. Walter Ogada, the Operations Manager at Elburgon forestry

Division. He deposed that the respondent was a limited liability company

whose main objective was the harvesting of forest products with a view to

making wooden products and that it did not own the suit land or any land in

the area complained of by the applicant but depended entirely on harvesting

Government forest products upon an agreement to pay to the Government

the requisite royalties. He annexed documents which showed that the

respondent had paid to the forest Department of the Ministry of

Environment, National Resources and Wildlife Kshs.500,000/- as licence

fees for harvesting forest products. The respondent annexed a letter dated 7th

November, 2003, exhibit WO2 addressed to Mr. N. Mehta, General Manager

of Comply Industries Ltd by the Permanent Secretary of the aforesaid

Ministry showing that the said company had been allowed to harvest forest

products at Mariashoni Station and Bahati Station. The relationship between

the said company and Timsales Limited (the Defendant) was not explained.

However, the said letter showed that Comply Industries Limited had been

granted permission to harvest forest products from 3 different locations of

Mariashoni Station, the same being Mariashoni 11B measuring 16. 0

Hectares, Mariashoni 11D measuring 34. 0 Hectares and Mariashoni 11 E

measuring 31. 0 Hectares.

Mr. Ogada further deposed that as far as the Defendant was concerned all

that land comprised in Mariashoni Station and Bahati Station was

Government land and not belonging to anyone. The respondent said that it

did not know that anybody had been allocated private land in Mariashoni

area and it was unable to state with particularity where the plaintiff’s land

was located and that it should have been the duty of the Plaintiff to fix clear

beacons defining his land. The deponent further deposed that the Defendant

had no interest in the suit land whatsoever other than exercising its right to

harvest forest products and stated that the plaintiff’s recourse was as against

the Government. The respondent contended that it had paid royalties to the

Government in respect of the trees in the aforesaid land parcels and so it was

entitled to harvest all the trees therein without any interference whatsoever.

Mr. Ogada also deposed that if the injunction was granted as prayed, the

Defendant stood to suffer irreparably as the factory risked being ground to a

halt while it had to pay its workers totaling to 1,500/-.

In his submissions, Mr. Karanja for the applicant stated that the land in

question belonged to the Plaintiff and not the Government of Kenya and the

respondent was interfering with private property. He further submitted that

the Plaintiff stood to suffer irreparable loss unless the orders sought were

granted because the trees on the land would be destroyed and further, the

applicant had sentimental attachment to the land with its trees. Counsel also

submitted that the balance of convenience was in favour of the Plaintiff as

the Respondent could cut down trees in other areas.

Mrs. Odhiambo for the respondent submitted that the applicant had not

shown how he acquired the land saying that the title had not been acquired

procedurally. She contended that the title deed was only prima facie

evidence of ownership of the land and submitted that the applicant should

have joined to the suit other defendants like the Commissioner of Lands and

the Attorney General. Counsel further contended that no prima facie case

had been shown against the respondent and the applicant had not shown that

he stood to suffer irreparable loss if the orders sought were not granted.

I have considered all the issues raised by the parties as well as the

submissions by counsel. It is not in dispute that the plaintiff is the registered

absolute proprietor of the suit premises and the Title Deed was issued to him

on 2nd July, 1998. The definition of land includes trees which may be

growing on the land. All the documents relating to payment of royalties and

permission to harvest the forest products which the respondent annexed to its

replying affidavit were issued sometimes in 2004 long after the plaintiff

acquired his title to the suit premises. The respondent does not have the

capacity to question the manner in which the applicant acquired his Title

Deed to the land in question and the validity of the applicant’s Title Deed is

not in issue. The applicant had a right to protect the trees on his land from

being destroyed by the respondent. I believe that the applicant knows the

extent of his land which is 4. 2 Hectares. It is easy to show out the

boundaries thereof and determine whether it falls within the area on which

the respondent was licenced to carry out its activities of harvesting forest

products. In the event that it does, the Forest Department would have acted

improperly in including the same because it had no power to interfere with

private property.

The applicant has established a prima facie case with a likelihood of success

as against the Defendant and I am in agreement with the applicant that

unless the orders sought are granted the applicant will suffer irreparable loss

as all the tree on his land will be cut down and ferried away by the

respondent. The applicant has therefore satisfied the first two tests for grant

of interlocutory injunctions as per the celebrated decision ofGIELLA VS

CASSMAN BROWN & CO. LTD [1973] E.A. 358.

I do not need to consider the balance of convenience as I have no doubt that

the applicant has satisfied the above two tests. However, if I were to

consider the application on that issue, I would hold that the balance of

convenience tilts in favour of the applicant whose land stands to be

destroyed irreparably whereas the respondent can continue to harvest forest

products in the other areas excluding on the 4. 2 Hectares owned by the

applicant.

In conclusion, I grant the orders as sought by the applicant and direct him to

mark out the boundaries of his land if the same are not clear so that the

respondent may exclude it from its operations. The costs of this application

are awarded to the applicant.

DATED, SIGNED & DELIVERED at Nakuru this 19th day of October,

2004.

DANIEL MUSINGA

AG. JUDGE

19/10/2004