[2013] KEHC 287 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

E & L CASE NO. 324 OF 2013

JOYCE MOKEIRA MOMANYI……….……………………..………. PLAINTIFF

VERSUS

MARTHA NYABOKE……………………………………………… DEFENDANT

RULING

Introduction;

The plaintiff, Joyce Mokeira Momanyi is the attorney of one, Francis Kerongo Anyona who is the registered proprietor of all that parcel of land known as LR. No. Nyaribari Chache/ B/B/Boburia/6729 which measures approximately, 0. 04 hectares (hereinafter referred to only as “the suit property”). Joyce Mokeira Momanyi and the said, Francis Kerongo Anyona shall be referred to hereinafter jointly and severally for the purposes of this ruling as “the plaintiff”. The defendant is registered as the proprietor of all that parcel of land known as LR. No. Nyaribari Chache/B/B/Boburia/6375 (hereinafter referred to only as “Plot No. 6375”). The defendant has donated a power of attorney to one, Justus Magati Nyaberi to appear and defend this suit on her behalf. The defendant, Martha Nyaboke and the said Justus Magati Nyaberi shall all be referred to hereinafter jointly and severally for the purposes of this ruling as “the defendant”. The plaintiff brought this suit against the defendant on 23rd July, 2013 seeking among others; a declaration that the plaintiff is the legally registered owner of the suit property, a permanent injunction to restrain the defendant from in any way whatsoever entering, encroaching and/or doing anything on the suit property, an order for the demolition of any structures that the defendant may have put up on the suit property and the eviction of the defendant therefrom. Together with the plaint, the plaintiff filed an application by way of Notice of Motion dated 22nd July, 2013 under certificate of urgency seeking interlocutory injunction to restrain the defendant from entering, encroaching or carrying out any construction on the suit property pending the hearing and determination of this suit. That is the application which is the subject of this ruling.

The grounds on which the application was brought;

The plaintiff’s application was supported by the affidavit and further affidavit sworn by the plaintiff on 22nd July, 2013 and 8th August, 2013 respectively. In the two affidavits, the plaintiff contended that the plaintiff is the registered owner of the suit property having purchased the same from one, Josephine Moraa Ondara on 24th April, 2004 while the defendant is registered as the proprietor of Plot No. 6375. The Plaintiff contended that the suit property and Plot No. 6375 are adjacent to each other. The Plaintiff claimed that between 8th December, 2012 and 17th June, 2013, the defendant destroyed the boundary fence that existed between the suit property and Plot No. 6375 and commenced the construction of a septic tank on the suit property. The plaintiff contended that the destruction of the boundary fence between the two parcels of land was carried out by the defendant with the intention of increasing the size of Plot No. 6375 on the ground and that unless the injunction sought is granted, the defendant stands to lose a portion of the suit property to the defendant. The plaintiff contended that the defendant has now fenced off the suit property and prevented the plaintiff from gaining access thereto. The plaintiff annexed to the two affidavits; a copy of the title deed for the suit property, a copy of a certificate of official search on the title of the suit property, and a copy of undated report by Olweny & Associates, licensed land surveyors. The said title deed and certificate of official search show that the suit property is registered in the name of the plaintiff. The said report by Olweny and Associates traces the origin of the suit property and Plot No. 6375 and concludes that the suit property and Plot No. 6375 are in existence on the ground and share common boundary along Kisii-Kilgoris tarmac road. The said report also pointed out the fact that the plaintiff has encroached on the suit property and is developing the same.

The defendant’s response;

The defendant opposed the plaintiff’s application. In his replying affidavit sworn on 22nd August, 2013 by the defendant’s attorney, Justus Magati Nyaberi, and undated grounds of opposition filed in court on 22nd August, 2013, the defendant denied all the allegations contained in the plaintiff’s affidavits in support of the application herein. The defendant contended that she is the owner of Plot No. 6375 and that she has never encroached beyond the boundaries of the said plot. The defendant annexed to the said replying affidavit a copy of the mutation form dated 3rd June, 1999 to demonstrate how Plot No. 6375 came about. The defendant also annexed a copy of the title deed for the said plot and a certificate of official search on the title of the same which show that Plot No. 6375 is registered in the name of the defendant.

The parties submissions and consideration of the application and the issues raised;

On 22nd August, 2013 the advocates for the parties agreed to argue the application herein by way of written submissions. The plaintiff filed her submissions on 26th August, 2013 while the defendant filed her submissions on 29th August, 2013. I have considered the plaintiff’s application, the affidavit in support thereof and the submissions filed by the Plaintiff’s advocates. I have also considered the affidavit in reply by the defendant and the defendant’s advocates written submissions. The principles applicable to applications for interlocutory injunction are well settled. As was stated in the case of Giella –vs- Cassman Brown & Company Ltd. [1975] E.A. 358, an applicant for interlocutory injunction must show that he has a prima facie case against the respondent with a probability of success and that unless the orders sought are granted, he will suffer irreparable harm. If the court is in doubt, the court will determine the application on a balance of convenience. The plaintiff has placed adequate material before me in proof of the fact that the plaintiff is the registered proprietor of the suit property. The plaintiff’s ownership or title to the suit property is not denied by the defendant and is therefore not in dispute. What is in dispute is whether or not the defendant has encroached on the suit property and commenced development on the same. This is the issue that the plaintiff was supposed to demonstrate or establish before the court on a prima facie basis. I am satisfied that the plaintiff has demonstrated on a prima facie basis that the defendant has trespassed on the suit property, fenced off the same and commenced construction of a septic tank thereon. The report prepared by Olweny & Associates is clear on the fact that the suit property and Plot No. 6375 share a common boundary and that both parcels of land exist on the ground. The said report has gone further to state that the defendant has encroached upon and occupied the suit property on which she is now carrying out development. The content of this report which was prepared by a firm of surveyors is not challenged by the defendant. The defendant’s attempts in her written submissions to challenge the conclusions reached in this report were in my view unsuccessful. I found no conflict between the various mutation forms that were relied upon by Olweny & Associates in the compilation of their report and those that were annexed to the defendant’s submissions. Both mutations forms place the suit property and Plot No. 6375 side by side along Kisii-Kilgoris tarmac road. Due to the foregoing, the plaintiff has persuaded me that she has a prima facie case against the defendant with a probability of success. On whether, the Plaintiff stands to suffer irreparable loss unless the orders sought are granted, the plaintiff’s title to the suit property is not disputed and if the injunction sought is not granted, the defendant will continue with the construction of a septic tank on the suit property an action which will not only deprive the plaintiff of the use of the property but will also change the character of the same. I am therefore satisfied that the plaintiff stands to suffer irreparable harm unless the orders sought are granted.

Conclusion;

Due to the foregoing, I am satisfied that the plaintiff’s application dated 22nd July, 2013 has merit. With regard to the orders to grant, I am not certain as to where the exact boundary between the suit property and Plot No. 6375 lies on the ground. It is claimed that the defendant destroyed the boundary features between the two parcels of land and started developing them as one parcel. This is an issue which can only be determined at the trial. Caution should be taken to ensure that the defendant is not prevented from carrying out development on his own plot while at the same time the interest of the plaintiff in the suit property is not compromised. The plaintiff seems not to have a problem with the permanent two (2) storey building which the defendant has put up on the area near the disputed property. There seems to be consensus that this building is on Plot No. 6375. The bone of contention seems to surround only the septic tank which the plaintiff claims to have been put up on the suit property. Balancing the interest of the plaintiff as against that of the defendant pending the hearing and determination of this suit I am inclined to accept as the boundary between the suit property and Plot No. 6375, the marks indicated in the photographs annexed to the further affidavit sworn by the plaintiff on 8th August, 2013 which places the septic tank being constructed by the defendant inside the suit property. I will therefore grant the injunction sought in terms of prayer No. 3 of the application. For the avoidance of doubt however, the injunction granted herein shall not stop the defendant from continuing with the construction of the building which is being put up on Plot No. 6375. What is restrained is the construction of the septic tank on and any entry into, or encroachment on the suit property whose boundary I have described above as extending from the area where the septic tank has been put up. The costs of this application shall be paid to the plaintiff by the defendant.

Dated, signed and delivered at KISII this 1st day of November 2013.

S. OKONG’O,

JUDGE.

In the presence of:-

……………………………………………. for plaintiff

……………………………………………. for defendant

………………………………………………..Court Clerk.

S. OKONG’O,

JUDGE.

E&LCC.NO. 324 OF 2013