[2023] KEELC 18613 (KLR)

Kangaya & another v Sinbokas Machinery Limited & 6 others (Environment & Land Case E008 of 2023) [2023] KEELC 18613 (KLR) (5 July 2023) (Ruling)

Neutral citation: [2023] KEELC 18613 (KLR)

Republic of Kenya

In the Environment and Land Court at Kapsabet

Environment & Land Case E008 of 2023

MN Mwanyale, J

July 5, 2023

Between

Lawrence Isindu Kangaya

1st Plaintiff

Juliana Jebet Isindu

2nd Plaintiff

and

Sinbokas Machinery Limited

1st Defendant

Mary Mbugua

2nd Defendant

Robert Oleiterem

3rd Defendant

Charles Malakwen

4th Defendant

Nandi County Government

5th Defendant

The Land Registrar Nandi County

6th Defendant

The Hon Attorney General

7th Defendant

Ruling

1. This ruling relates to a Notice of Motion dated 22nd March 2023 brought under Section 1A, 3 and 3A of the Civil Procedure Act, Order 40 Rule 1, 2 and 3 of the Civil Procedure Rules, Article 159 and 162 (2) of the Constitution. The Plaintiffs/Applicants sought the following orders;i.Spentii.Spentiii.That, pending the hearing and determination of this suit this Honourable Court be and is hereby pleased to issue a temporary injunction against the 1st, 2nd, 3rd and 4th Respondents, their agents, servants or any other person acting under their authority restraining them from transferring, leasing, selling, entering, collecting rent from the Applicant’s tenants, interfering with the Plaintiff’s occupation and use and/or dealing in any manner with all that parcel of land known as L.R. NO. 1181/326 also known as Kapsabet Municapality/84. iv.That, costs of this application be in the cause.v.Any other relief that may be granted by the Court as it deems fit.

2. This application is premised on the grounds appearing on the face of it together with Supporting Affidavit of Lawrence Isindu Kangaya sworn on 20th March 2023. The first Applicant deponed that on 5th April 2000, he purchased land parcel No. L.R 118/326 also known as Kapsabet Municipality/84 from the original allotee Jotham Nguza Amisi. Subsequently the said property was transferred in his favour. He also deponed that on 15th August 2016, he sold the suit property to his wife Juliana Jebet Isindu, the 2nd Plaintiff/Applicant in whose favour the property was registered under. The Applicants annexed a certificate of lease issued under Registration of Titles Act (repealed) bearing thee entries. The 1st Applicant informed this Court vide his supporting affidavit that between the year 2000 and 2009, he developed the suit property by erecting shops which were currently leased out to tenants.

3. His further deposition was that the 5th Respondent had directed the 6th Respondent to issue a lease in favour of the 4th Respondent despite the existence of a lease in favour of the original allotee, Jotham Nguza Amisi, who never surrendered the original lease to the Land Registrar.

4. He also deponed that on 13th March 2023, tenants leasing shops erected on the suit property received notices directing them to remit rent to an unknown entity. Upon his investigations at the Land Registry, the 1st Applicant discovered an entity known as Sinbokas Machinery Limited was the registered owner of the suit property as from 5th May 2022. He stated that the 2nd Plaintiff/Applicant and himself have been in continuous possession of the suit property and the same has never been available for alienation or allocation. Therefore, the registration in favour of the 4th Respondent was irregular. Illegal, null and void and no title or interest in land could be passed by the 4th Respondent to any other party. He prayed for the orders sought as a result.

5. The application was opposed by the 3rd Defendant/Respondent vide Replying Affidavit dated 5th April 2023. He stated that he was a Director of the 1st Defendant hence his capacity to swear the said affidavit on behalf of the 1st and 2nd Defendants/Respondents. He deponed that the 1st Defendant/Respondent was the legal owner of that parcel of land known as Kapsabet Municipality/84, the suit property herein. That indeed notices were issued to the tenants on the suit property at the instructions of the 1st Defendant/Respondent. He contended that the certificate of title held by the Plaintiffs was false and fraudulent. As a result he prayed for dismissal of the application.

6. In response to the Replying Affidavit, the 2nd Plaintiff/Applicant filed a further affidavit dated 15th May 2023. She averred that she is the registered owner of the suit property. That the certificate of lease annexed to the Replying Affidavit was illegal, null and void since the same was issued yet there was no surrender of the title she possesses. In the circumstances, she prayed for status quo obtaining in the property be maintained pending determination of the suit.

7. This application was canvassed by way of written submission which this Court has carefully considered together with authorities relied upon therein. The Court makes the following determination;-

Analysis and Determination: - 8. I have framed the following issues for determination;i.Whether the Plaintiffs/Applicants have met all the requirements to be granted orders of temporary injunction.ii.Who shall bear costs of the application?

9. The requirements to be met by an Applicant in an application such as this were well settled in the celebrated case of Giella v Cassman Brown & Company Limited [1973] E A 358 where the Court expressed itself as follows;“Firstly an Applicant must show a firma 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.”

10. Have the Plaintiffs/Applicants made out a prima facie case? To answer this I wish to cite the case of Mrao v First American Bank of Kenya Limited & 2 others [2003] KLR 123 whereby a prima facie case was described as: -“a prima facie case in a Civil 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 include 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.”

11. Going back to the facts of this case but without delving into the issues conclusively at this stage, the 2nd Plaintiff/Applicant has alleged that she is the registered owner of the suit property known as L.R. No. 1181/326 which has also been referenced as Kapsabet Municipality/84. She produced a certificate of title issued under the Registration of Titles Act (now repealed) to support her assertion. Both Plaintiffs/Applicants also allege that they have been in possession of the said property since the year 2000 until now. To buttress this position they annexed photographs of shops they erected on the suit property.

12. The 1st, 2nd and 3rd Respondents on their part have also produced a certificate of lease over property known as Nandi/Kapsabet/Municipality/84 registered in the name of the 1st Respondent.

13. It is evidence that the suit property has two competing titles. However, at this interim stage the Court is not in a position to ascertain which title is genuine and which was unlawfully issued. These disputed facts will only become clear during trial with further evidence from Lands Office, Nandi County.

14. Based on the existence of two competing titles over the suit property this Court finds that the Plaintiffs/Applicants have not established a prima facie case with probability of success.

15. On the second requirement for grant of temporary injunction which is whether they cannot be compensated by an award of damages, the Applicants alleged that they have been in possession of the suit land since the year 2000 and have erected and leased out shops therein. However, it is noted that only photographs of the alleged shops were provided. The Applicants did not provide any form of tenancy agreement to justify this fact. Moreover, they have not demonstrated the loss they stand to suffer is irreparable and cannot be compensated by an award of damages. This limb consequently fails.

16. On the last requirement, in whose favour the balance of convenience tilts, the Court is of the view that the balance of convenience tilts in favour of maintaining status quo obtaining in the property. By maintaining status quo, the substratum of the subject matter will be maintained and no party will be prejudiced.

17. In view of the disputed facts earlier demonstrated herein, the Court finds it just to issue an order for maintenance ofstatus quo as was the case in Joash Ochieng Ougo [1987]eKLR where the Court of Appeal observed that;“The general principle which has been applied by this Court is that where there are serious conflicts of fact, the trial Court should maintain the status quo until the dispute has been decided in a trial.”

18. Consequently, the application dated 22nd March 2023 is hereby disallowed. In spite of this conclusion, the Court has a duty to preserve the sit property and safeguard the interest of each party pending the outcome of this suit. In line with this duty, the Court issues an order for status quo obtaining on the ground and on the register to be maintained pending the hearing and determination of the suit.

19. It is so ordered.

DELIVERED AND DATED AT KAPSABET THIS 5TH DAY OF JULY, 2023. HON. M. N. MWANYALEJUDGE.In the presence of;Mr. Mwetich for the 1st, 2nd and 3rd RespondentsMs. Cheruiyot for 6th and 7th RespondentsMr. Murgor for PlaintiffsMr. Kogo for the 5th Defendant