[2008] KEHC 3559 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA

Civil Case 111 of 2006

JOSEPH WAMUKOYA ORACH ………………...…………… APPLICANT

V E R S U S

PETER OCHANJI WAMUKOYA ………………………… RESPONDENT

R U L I N G

The application before me was brought by way of a Notice of Motion, which was expressed as having been made pursuant to the provisions of section 3A and 63 (c) of the Civil Procedure Act; and sections 128 and 136 of the Registered Land Act.

The applicant seeks two substantive reliefs pending the hearing and determination of the Originating Summons, through which he hopes to be declared the owner of the suit property, L. R. No. EAST/WANGA/ISONGO/509. According to the applicant, he had acquired title by virtue of adverse possession.

Pending the hearing and determination of the Originating Summons, the applicant has sought-

(1)an interlocutory injunction to restrain the respondent from claiming the suit property, or from interfering with the applicant’s peaceful enjoyment and use thereof.

(2)an order of restriction or inhibition to be issued against the title to the suit property, so as to inhibit or prohibit any dealings and registration.

It is the applicant’s case that he had stayed on, and utilized the suit property since the year 1972. During that period, or part thereof, the applicant says that he had planted sugarcane on the property, and he exhibited a copy of a contract between him and Mumias Sugar Company Limited dated 14/3/2006, as evidence of the usage to which he had put the land.

Notwithstanding the long period of occupation and usage of the land, the respondent is said to have started applying force against the applicant, with a view to removing him from the said property. It is for that reason that the applicant asks this court to issue an order of injunction to restrain the respondent as afore-cited. It is also for the same reason that the applicant asks that an inhibition should issue in relation to the title, so that no further dealings can take place whilst the suit herein was pending.

The order for inhibition was said to be necessary because the respondent intends to dispose of the suit property.

In answer to the application, the respondent first expressed the view that the applicant had mixed up issues of the interlocutory application with the issues appertaining to the substantive action for adverse possession.

The reason for that contention stems from the fact that the annexeture which the applicant cited in the submissions, was not annexed to the affidavit in support of the application.

Whilst it is true that the applicant did not annexe to his affidavit in support of the application, the copy of the contract between him and Mumias Sugar Company Limited, the applicant did expressly depone in that affidavit that he was reiterating the contents of his affidavit in support of the Originating Summons.

Secondly, in the celebrated decision of GIELLA Vs. CASSMAN BROWN & CO. LTD. [1973] E.A. 358 at page 360, the Hon. SPRY V. P. stated as follows:-

“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

In effect, by inter linking the application to the substantive action, I find that the applicant was striving to demonstrate that he has a prima facie case with a probability of success. He was therefore, wrongly accused of confusing the application with the substantive action.

The respondent then submitted that his rights, as the registered proprietor of the suit property, were duly protected under section 28 of the Registered Land Act. Therefore it was the respondent’s contention that it would be unlawful to restrain him from enjoying his rights over the suit property.

It was the respondent’s submission that the equitable remedy of an injunction would not be useful in this case as it could not be enforced against the registered proprietor of the suit property. In effect, the injunction, if issued, would be in vain, yet equity does not do anything in vain, so submitted the respondent.

I believe that the respondent meant to make reference to the well recognized maxim which stipulates that the court does not act in vain, be it whether the court was granting an equitable remedy or even when enforcing a statutory right.

Next, the respondent submitted that the applicant had failed to demonstrate that he had a prima facie case with a probability of success. That submission was premised on the applicant’s contention that the suit property had been purchased for him by his mother. However, as the applicant was, at the time, still a minor, his mother is said to have registered the title thereof to the respondent.

It was therefore the respondent’s submission that in those circumstances, the applicant did not have anything which could be protected by an injunction.

The respondent also said that the applicant could not suffer irreparable loss if the injunction was not granted, as the applicant was said not to be in possession of the suit property. According to the respondent, the applicant’s house was burnt down, and the applicant was forcibly removed by villagers who had blamed the applicant’s wife for causing the death of the applicant’s mother.

Although the respondent submitted that the applicant had conceded having been forcibly ejected from the suit property, it is clear from the applicant’s affidavit in support of the Originating Summons, that the applicant deponed thus:-

“3. That the suit land parcel No. East Wanga/Isongo/509 is my family land on which I have stayed since 1972 to-date.”

The applicant went further to depone as follows:-

“7. That I subsequently put up a permanent house on the suit land in which I have stayed to-date.”

From those two depositions, I find that the applicant has not conceded that he was no longer staying on the suit property. If anything, the applicant was emphasizing that he was still resident on the suit property as at the date when he instituted these proceedings.

On the other hand, the respondent asserts that he had settled his son on the suit property, and that if this court were to issue an injunction, that would greatly inconvenience the respondent and his son.

As the respondent did submit, the court cannot act in vain. But that is not equivalent to the contention that an injunction cannot issue against the registered proprietor of real property. And in order to have a better appreciation of the legal position, I find it prudent to set out herein the provisions of section 28 of the Registered Land Act, which stipulates as follows:-

“The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall be rights not liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, from all other interests and claims whatsoever, but subject –

(a)to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

(b)unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require noting on the register:

Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.”

It is evident that the registered proprietor of land enjoys rights and privileges arising from the fact of the said registration. However, the same statutory provision which expresses that position, also says that those rights and privileges are subject to the specified interests, as set out in the Registered Land Act.

One of those specified interests, which are termed as overriding interests, is to be found at section 30 (f) of the Act, which talks of;

“rights acquired or in the process of being acquired by virtue of any written law relating to the limitation of actions or by prescription.”

It follows therefore that the rights of the registered proprietor were not absolute.

And in this case, I understand the applicant to be contending that he had already acquired title, by virtue of adverse possession, in accordance with the provisions of sections 37 and 38of the Limitation of Actions Act.

In effect, if the applicant were to ultimately produce sufficient evidence to prove his claim as to the ownership of the suit property, the court may so declare him to be the lawful owner thereof. To that extent, if the court were to make a declaration, such an order would lawfully terminate the respondent’s proprietary rights to the suit property.

In other words, the respondent’s title, although registered, may yet be defeated lawfully, if only the applicant were to adduce sufficient evidence to prove his case, as set out in the Originating Summons.

On the basis of the information so far made available to the court, the respondent does not dispute the applicant’s contention that the applicant had lived on the suit property since 1972. He also does not dispute the applicant’s contention that the applicant had built a permanent house on the suit property, and also that the applicant had occupied and used the land from 1972.

The respondent only says that after May 2006, the applicant’s house was burnt down, and that the applicant and his family then fled.

The applicant denies the respondent’s contention, and insists that the respondent was cutting down the applicant’s trees and crops, with a view to forcing the applicant to leave the property.

At this stage, this court is unable to make a finding on that disputed issue of fact. However, it is evident that between 1972 and 2006, the period is of 34 years. That is well over the 12 years which is necessary for someone who occupies land peaceably and without interruption, to lay claim to the ownership thereof, by virtue of adverse possession.

Given the circumstances so far brought out in this case, I am more inclined to believe the applicant, that the respondent was trying to force him off the land. I say so because on a prima facie basis, I am satisfied that the applicant has made out a claim with a probability of success.

Secondly, as the suit property has been the applicant’s home for about 36years, if he were to be forced out of it now, whilst his claim was still pending, the loss he would suffer would be incapable of being compensated in damages.

Furthermore, if the respondent were to be allowed to take possession, that may well alter the very foundation of the applicant’s case, to the detriment of the applicant.

The respondent has said that he has no intention of disposing of the suit property. Therefore, an order of inhibition would not prejudice him at all.

In the result, the respondent shall be restrained by injunction from interfering with the applicant’s peaceful enjoyment and use of the suit property L. R. NO. EAST WANGA/ISONGO/1590 until the hearing and determination of the suit herein.

It is further ordered that there shall issue forthwith a restriction or inhibition against the title to the suit property, so that no dealings can be registered in relation thereto until the suit is heard and determined.

The costs of the application dated 18th December, 2006 are awarded to the applicant.

It is so ordered.

Delivered, dated and signed at Kakamega this 16th day of April, 2008

FRED A. OCHIENG

J U D G E