[2016] KEELC 391 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC CIVIL SUIT NO. 46 OF 1996

KENYA BREWERIES LIMITED……………………………..………...….….PLAINTIFF/APPLICANT

-VERSUS-

COUNTY GOVERNMENT OF MASA…………...………….……1ST DEFENDANT/RESPONDENT

ABDULWAHID A. MOHAMED………………………….…...…..2ND DEFENDANT/RESPONDENT

ANNE JEPNGENTICH……………………………………………3RD DEFENDANT/RESPONDENT

HAWA LUL BASHIR…………………….………………….…,…..4TH DEFENDANTRESPONDENT

LUCY SALIKU MUKHONGO……………………………….……5TH DEFENDANT/RESPONDENT

NANCY NJERI MAINA…………………….……………....……...6TH DEFENDANT/RESPONDENT

SHAKRAM SHADOST HAJI………………………………….….7TH DEFENDANT/RESPONDENT

RULING

1. The plaintiff/Applicant filed the present motion dated 17th March 2016. The motion is brought under the provisions of section 1A, 1B and 3A of the Civil Procedure Act and Order 40 rule 1 (3) (10) of the Civil Procedure Rules. In it, the applicant prays for orders :

a) Spent

b) The honourable Court be pleased to issue a temporary order of injunction restraining the Defendants/Respondents and/or their servants, agents or otherwise, from dispossessing off, alienating, transferring, erecting or causing to be erected structures whether permanent or temporary, undertaking or causing to be undertaken any building and construction works, and/or otherwise from interfering with the suit land namely; Title Number MOMBASA/BLOCK IX/133 in its entirety and/or Title Numbers MOMBASA/BLOCK IX 210,211,212, 213 and 214, pending the hearing and determination of this application.

c) Spent

d) This Honourable Court do issue a temporary order of injunction restraining the 1st Defendant and/or their servants, agents or otherwise, from demanding, distressing and/or levying for recovery, of rates/rent and/or compounding or accumulating interest on rates as against the plaintiff for property No. Title Number MOMBASA/BLOCK IX/214 in its entirety, pending the hearing and determination of this suit.

e) This Honourable Court do issue a temporary order of injunction restraining the 1st Defendant and/or their servants, agents or otherwise, from demanding, distressing and or leving for recovery, for rates/rent as against the plaintiff for property No. Title Number MOMBASA/BLOCK IX/133 in its entirety and/or Title Numbers MOMBASA/BLOCK IX 210,211,212,213 & 214 pending the hearing and determination of this suit.

f) Any other or further preservation orders that this Honourable Court may deem just and convenient to grant in the circumstances.

g) The costs of the application be provided for.

2. The motion is supported by several grounds listed on the face of it and on the affidavit deposed to by Eva Kagondu. The grounds state inter alia that the 1st defendant has since issued a demand note for rent to the plaintiff dated 24th February 2016. Secondly that the defendants by themselves or through their servants have erected or caused to be erected both permanent and temporary buildings and construction works and are likely to continue to the detriment of the plaintiff.

3. The Applicant continued that the defendants have previously encroached, trespassed, disposed off, alienated and transacted in any manner interfered with the subject property and unless they are restrained by this Court they are likely to perpetuate these acts as to occasion irreparable loss to the plaintiff.

4. Ms Eva Kagondu the legal Manager of the Applicant deposed that the Applicant is the lessee from the Municipal Council of Mombasa of land known as MSA/Block IX/133. The remaining term of the lease is now Thirty Four (34) years. She deposed that vide a notice appearing in the Daily Nation of 24. 2.2016, the 1st defendant issued a demand notice for rent for plot No MSAA/Block IX/214 while this suit is pending. Ms Kagondu deposed that if the 1st defendant continued to recover the rates as demanded it would amount to substantial loss to the plaintiff to the land title No MSA/Block IX/133 as it would render this suit nugatory.

5. The Applicant avers that they replied to this demand notice vide their letter of 1st March 2016 but they are apprehensive the 1st defendant may not heed to this letter. She also deposed to the facts listed on the grounds as regards the defendants’ previous acts of encroachment, trespass and disposing off the land. She attached a bundle of photographs to confirm her averments as regards structures put up by the defendants. It is her case that the Applicant stands to suffer irreparable loss and urged that the orders be granted.

6. The application is opposed by the 1st and 4th defendants. The 1st defendant swore an affidavit through Chrisantus Mwadime who deposed that he is an assistant officer at the Physical Planning department. He deposed that land parcel No MSA/Block IX/133 was leased to East African Breweries in 1948. That the said East African Breweries failed and/or neglected to register the same hence the property remained vested in the defunct Municipal Council of Mombasa.

7. Therefore in 1987, the 1st defendant replanned and the RIM was changed creating lawfully plots Nos 210 – 214. Plot No 214 was allocated to the Applicant and the Applicant has since been paying rates in respect of this plot as per copy of the rate statement annexed. He deposed further that the plots created are rateable and the pendency of this suit does not stop the 1st defendant from demanding for rates. The 1st defendant deposes that the present application is incompetent, malicious and an abuse of the Court process.

8. The 4th defendant deposed that she has not undertaken any construction on her plot and the generalisation in reference to “the defendants/respondents” is meant to mislead the Court. She deposed that she is a bonafide purchaser for value without notice and the orders being sought are prejudicial to her not to utilize her plot. That this suit is now 20 years old and the plaintiff has not been serious in prosecuting it but is quick to rush to Court for injunctive orders on baseless and unsubstantiated grounds. She urged the Court to dismiss the application.

9. The Applicant, 1st and 4th Defendants filed their rival submissions which I have read. The main reason the Applicant moved to Court to seek the injunctive relief is because the 1st defendant demanded for payment of rates. The orders sought are directly against the 1st defendant and their nominees/servants from demanding, distressing and or recovering of rates/rents and or accumulating interest on rates as against the applicant’s property.

10. In the grounds particularly ground (b) and (c) reference is made to acts of other defendants who have encroached and erected or caused to be erected buildings and construction on the subject matter. These acts are not sought to be stopped. The words used are also in the past tense meaning they are activities which have already taken place. Order 2 of the Civil Procedure Rules requires parties to be bound by their pleadings. For this reason I will only consider whether the applicant has made any case for orders restraining the 1st defendant from demanding for rates has been made out.

11. The Applicant submitted that the 1st defendant created illegal subdivions to the other defendants. She also submitted that the defendants have previously encroached, trespassed, disposed off or alienated the subject matter. These are not issues she prayed for in the motion. I find the Applicant’s submissions are not wholly in tandem with the orders being sought in the motion and documents given in support because a copy of the certificate of this itself at page 2 shows rent is payable to the Lessee at Kshs 5,061 p.a. She has not submitted on why the rates should not be paid/demanded and what prejudice she is likely to suffer.

12. The 1st defendant submits that the plots are rateable as per the law. The 1st defendant avers that the Applicant has not demonstrated that she will suffer loss. That where the loss is quantifiable the injunction will not generally issue. That in the instant suit the Applicant has quantified the claim. The 1st defendant quoted Dileep Manibhai Patel & 3 Others vs Municipal Council of Nakuru & Another (2014) eKLR which stated that it is the duty and obligation of every person liable to pay tax.

13. The demand issued by the 1st defendant was in respect of plots No MSA/Block IX/210 – 214. The plot Nos 210 – 213 at the time of filing the amended plaint dated 29th July 2009 was already leased to the 2nd – 7th defendants by the 1st defendant. At the time the application was filed, there is no evidence that these defendants are in the process of disposing off or building on the suit property. Since this Court has not made a finding on the illegality or otherwise of the defendants titles, I find no basis why the Applicant should bar the 1st defendant from collecting taxes due from the respective plots. In any event paying of rates perse does not confer any rights of ownership upon any party.

14. Furthermore the plaintiff’s own pleadings disclosed that the defendants have previously encroached and put up structures both permanent and temporary ones on the subject property. Yet order 40 rule 1 outlines cases in which interim orders of injunction may be granted to wit :

a) Any property in dispute is in danger of being wasted or damaged or alienated.

b) The defendant threatens or intends to remove property to obstruct or delay the execution of a decree.

15. As pointed out by the 4th defendant, the Applicant has merely generalised that the defendants are erecting structures on the land. The photographs annexed do not have any dates so that this Court would determine whether they are structures previously put up or are now under construction. In effect the Applicant has not demonstrated any new activities/threat being done by any of the defendants that would warrant the grant of the orders sought.

16. The Applicant has also not satisfied this Court on the heading of irreparable loss. This taking into account the age of this suit and that the same has not been prosecuted on its merit since it was filed in 1996. It will be important that the hearing of the main suit is given priority. I find the present Application to be without merit and I proceed to dismiss it with costs to the 1st and 4th defendants. The plaintiff is directed to take immediate steps by inviting all the parties to have this suit set down for hearing.

Signed and delivered at Mombasa this 27th day of October 2016

A. OMOLLO

JUDGE