[2022] KEELC 1118 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CASE NO.238 OF 2011

JOSEPH MUSYOKI NZOKA......................................1ST PLAINTIFF

GEORGE OWUOR......................................................2ND PLAINTIFF

FLORENCE MUENI..................................................3RD PLAINTIFF

SUSAN MUKANDI MUGAMBI................................4TH PLAINTIFF

SAMUEL MBAGU.....................................................5TH PLAINTIFF

JOHN OGOLLA AKONG’O....................................6TH PLAINTIFF

DAIAN NYAMBURA NGUGI.................................7TH PLAINTIFF

MAURICE ODHIAMBO AWITI..............................8TH PLAINTIFF

NAOMI KWAMBOKA ABUYA...............................9TH PLAINTIFF

JOSEPH ONGUBO SIGA.......................................10TH PLAINTIFF

DAVID YATOI JACOB............................................11TH PLAINTIFF

JOSEPHAT WANGAI..............................................12TH PLAINTIFF

SAMUEL KIMANI NDUNG’U.............................13TH PLAINTIFF

BETH WANJIKU NGUGI......................................14TH PALINTIFF

FRANCIS NJUGUNA THIONGO.........................15TH PLAINTIFF

JOSEPHAT KAMAU MWANGI...........................16TH PLAINTIFF

-VERSUS-

PENTAGON COMMUNICATIONS LIMITED.........DEFENDANT

RULING

1. Judgement in this matter was entered on 8th November 2013 and the matter was marked as settled on 10th February 2020.

2. The Notice of Motion is dated 14th December 2020. It is brought by the Defendant under Section 1A,3A and 80 of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 12 Rule 7 and Order 40 Rule 1 and 2 of the Civil Procedure Rules,2010 and Article 159 of the Constitution of Kenya, 2010.

3. The Applicant seeks orders;-

1. Spent.

2. Spent.

3. Pending hearing and determination of the Defendant’s application dated 21st April 2015 there be and is hereby issued order of injunction to restrain the Plaintiffs, their agents, servants, family members or any other person acting on their behalf from selling, disposing of, transferring, leasing, charging or in any other way dealing with the suit property known as L.R NO.9042/118.

4. The order of this Honourable court made on 10th February 2020 marking this case as closed be and is hereby set aside.

5. The Honourable court be pleased to give an early hearing date of the Defendant’s application dated 21st April 2015.

6. Costs of this application be paid by the Plaintiffs jointly and severally.

4. The grounds in support of the application are on the face of the application. They are set out in paragraphs 1 to 13.

5. The application is supported by the annexed affidavit sworn on 14th December 2020 by Anish Doshi; a director of the Defendant company.

6. He deponed that the Plaintiffs obtained judgement against the Defendant in which the suit property known as L.R No.9042/118 was awarded to and vested upon the Plaintiffs who perfected the judgement by registering the suit property in their name, but the said judgement was obtained through fraud because the Defendant was not served with summons to enter appearance and the pleadings.

7. He further deponed that the Defendant filed an application dated 21st April 2015 seeking to set aside the ex parte judgement for lack of proper service. He deponed that the record shows that on 8th July 2019, in the presence of the Plaintiff’s counsel, this Honourable Court fixed the Defendants applications dated 21st April 2015 and 21st June 2016 for hearing on 14th October 2019 but on 14th October 2019, the court strangely ordered parties to comply with order 11 of the Civil Procedure Rules, 2010 and fixed the case for mention on 10th February 2020 yet this was a concluded case.

8. He added that on 10th February 2020,counsel for the Plaintiffs’ Mr. Gichigi misled the court to make an error on the face of the record by marking the matter as closed while the Defendant’s applications were pending hearing.

9. He deponed that failure to follow up and have the application dated 21st April 2015 prosecuted was occasioned by indolence and failure on the part of the Defendant’s erstwhile advocates on record.

10. He also deponed that if the application is not allowed, the Defendant who has a good defence and interest in the suit property will be prejudiced.

11. The application is opposed by the Plaintiffs by way of the replying affidavit sworn by the 1st Plaintiff on 15th April 2021. He deponed that the Plaintiffs served the Defendant with all pleadings and hearing dates as demonstrated by various affidavits of service on record.

12. He further deponed that that the Defendant’s application dated 21st April 2015 stood dismissed for want of prosecution thus the Defendant can only file another application and not pray for the court to bring back to life a spent application.

13. On the Defendant’s prayer for injunction, he deponed that that the suit property has already been registered in the names of the Plaintiffs thus the Defendant does not have any legal /physical interest on the suit property.

The Defendant/Applicant’s submissions

14. They are dated 12th July 2021. The Defendant submitted that the following issues arise for determination;

a. Whether the orders of this court made on 10th February 2020 should be set aside.

b. Whether the Defendant’s application dated 21st April 2015 should be fixed for hearing.

c. Whether the order of injunction should be granted.

d. Who should bear costs of the application?

15. The Defendant submitted that its application dated 21st April 2015 is still on record as is has neither been dismissed for want of prosecution nor heard and determined on merit as alleged by the Plaintiffs; therefore the Defendant should be accorded a hearing on the said application.

16. It also submitted that it had met the principles for grant of temporary injunctions set out in Giella v Cassman Brown & Co. Ltd [1973] E.A358. It pointed out that it had demonstrated a prima facie case since it was the owner of the suit property before registration of the Plaintiffs as owners based on an ex-parte judgement that was entered irregularly as the Defendant was not served with summons.

17. It further submitted that if the property is transferred by the Plaintiffs, it will suffer irreparable harm as the property would be put beyond its reach. It added that the balance of convenience lies in granting the order of injunction so that the property remains in the Plaintiffs’ names but they be restrained from transferring the same or dealing with it in a manner prejudicial to the Defendant which is tantamount to preserving the status quo.

The Plaintiffs’/Respondents’ submissions

18. They are dated 1st November 2021. The Plaintiffs relied on the case of Nilani v Patel (1969) E.A 341 as quoted in Chaterhouse Bank Limited & Another [2019] eKLR to submit that the onus to prosecute the applications dated 21st April 2015 and 21st June 2016 lied on the Applicant and the court therefore exercised its discretion to dismiss the applications for want of prosecution.

19. On the issue of grant of injunction orders, they submitted that the orders would be granted under Order 40 Rule 1 if the property was in imminent danger of destruction. They added that they have been in uninterrupted occupation of the suit property since 1993 and the property is registered in their names thus it is not in danger of wastage. They added that the Defendant did not meet the principles for grant of injunctions set out in Giella v Cassman Brown (supra).

20. I have considered the notice of motion and the affidavit in support. I have also considered the response thereto, the rival submissions and the authorities cited. The issues for determination are:-

i. Whether the Application is merited.

ii. Who should bear costs of the Application?

21. It is not in dispute that judgment was entered for the Plaintiffs in this matter on 8th November 2013. The Defendant filed an application to set aside the judgment. The said application was filed on 21st April 2015.

22. It appears the application was not prosecuted for a long period of time.

23. On the 14th October 2019, the court directed that the pending applications dated 21st April 2015 and 21st June 2016 be dispensed with. Parties were directed to comply with order 11 of the Civil Procedure Rules. The matter was fixed for mention on 10th February 2019.

24. On the 10th February 2020, Mr. Gichigi for the Plaintiffs was present but there was no appearance for the Defendant.

25. Mr. Gichigi informed the court that judgment was entered on 8th November 2013 and the same was executed. That a vesting order was registered in favour of the Plaintiffs. He further stated that there was nothing pending and the matter could be marked as closed. The court then marked the matter as closed and or settled.

26. By virtue of the directions given by this court on 14th October 2019, it means that prayer No (3) of this application is spent.

27. By 10th February 2020 what was pending was the hearing of the main suit.

28. I agree with the Defendant’s submission that the court erred in marking hits matter as closed when it had given directions the parties to comply with order 11.

29. I repeat that by virtue of the directions of 14th October 2019 the Defendant was given an opportunity to defend this suit.

30. I find merit in this application and I grant the orders sought in terms of prayer (4) of the notice of motion. It is in evidence that the suit property is now registered in the names of the Plaintiffs. The Plaintiffs are directed not to dispose of or transfer the suit property pending the hearing and determination of this suit. The Defendants do bear costs of this application.

It is so ordered.

DATED, SIGNED AND DELIVERED NAIROBITHIS 24TH DAY OF FEBRUARY, 2022

……………………….

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Kinyua Mbaabu for the Plaintiffs

Mr. Oluga for the Defendant

Steve - Court Assistant