[2022] KEELC 15001 (KLR)

Kinuthia v Munguti & 2 others (Environment & Land Case E18 of 2022) [2022] KEELC 15001 (KLR) (24 November 2022) (Ruling)

Neutral citation: [2022] KEELC 15001 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case E18 of 2022

A Nyukuri, J

November 24, 2022

Between

Henry Kuria Kinuthia

Plaintiff

and

Mathew Muange Munguti

1st Defendant

Benedict Kilonzo Muange

2nd Defendant

Mike Muli Musembi

3rd Defendant

Ruling

1. Before court is the notice of motion dated March 4, 2022, filed by the plaintiff/applicant seeking the following orders;(a)Spent(b)Spent.(c)That a temporary injunction do issue restraining the defendants/respondents by themselves and/or by their authorized agents, servant, employees and/or any persons acting under their authority from entering, trespassing constructing, interfering and/or in any other manner from dealing with the plaintiffs/applicant’s peaceful and exclusive possession and occupation of all those parcel of land known as Donyo Sabuk/komarock 1/62415 & 62416 pending hearing and determination of this suit.(d)That an order of eviction do issue evicting the defendants/respondents from all that land registered as Donyo Sabuk/komarock 1/62415 & 62416. (e)That the costs of this application be paid by the respondent.

2. The application is premised on the supporting affidavit sworn by Henry Kuria Kinuthia, the plaintiff herein. The applicant avers that he is the owner of all those parcels of land known as Donyo Sabuk/komarock 1/62415 & 62416 (hereinafter referred to as the suit properties).

3. He further stated that the defendants/respondents herein had filed a suit in the Environment and Land Court at Machakos being ELC No 184 of 2017 claiming ownership of the suit properties but the suit was dismissed with costs on September 20, 2021. He also stated that the defendants have denied the plaintiff access to the suit properties as they trespass thereon by constructing semi-permanent structures and harvesting sand without his permission. Further that he reported the threats at KBC police station requesting for security to access the suit properties.

4. According to the applicant, on March 3, 2022, while on the suit properties, with a view to survey the same and in the company of a surveyor and a contractor, a group of about 15 armed people with assorted crude weapons stormed the land and chased them away threatening to kill them. That the said people destroyed one of their motor vehicles and the same was reported to the police station;

5. The applicant maintains that the actions of the defendants/respondents on the suit properties are causing wanton destruction and should the court not issue restraining orders to the defendants/respondents, he stands to suffer irreparable loss. He prayed that the application be allowed.

6. The application is opposed. The 1stdefendant/respondent filed a replying affidavit dated March 15, 2022. It was the 1st defendant’s assertion that his late grandfather one Muange Musau was the registered proprietor of land known as Donyo Sabuk/komarock Block 1/547, and that the title deed was uncollected until 2017 when he visited the lands office only to be informed that it was not there. Further, that they have cultivated, grazed and built permanent houses on the suit property for over 40 years but the plaintiff is trying to disinherit them of property which they are beneficiaries. It is their position that they discovered the title had been issued to the plaintiff although the deceased neither sold nor transferred the title to the applicant before his demise.

7. The 1st defendant further stated that subsequently he lodged ELC No 184 of 2017 which was unceremoniously dismissed causing his advocates to file an application to reinstate the suit. Further that the respondent fixed the matter for hearing but on the eve of the hearing the suit was dismissed. That subsequently, he filed an application to reinstate the suit.

8. In addition, he stated that they were neither served with the application to dismiss the suit nor the hearing notice and the stamp and signature on the return of service was forged. He stated that the file that caused the subdivision of the suit property is untraceable and the plaintiff/applicant should explain to this court how he got the titles from a deceased proprietor. According to the respondents, the suit properties were curved from land parcel Donyo Sabuk/komarock Block 1/547.

9. He finally stated that the applicant does not have a good title and lacks capacity to lodge this suit and the application. He stated that the applicant had sworn in ELC 184 of 2017 that he sold parcel Donyo Sabuk/komarock 1/62415 to Reits Capital Limited and transferred parcel Donyo Sabuk/komarock 1/62416 to Uniconnect Ltd, a company associated to the plaintiff.

10. The plaintiff/applicant in a rejoinder filed a supplementary/affidavit dated March 23, 2022 and stated that plot number 251 which was later registered as Donyo Sabuk/komarock 1/547 and later sub-divided to the suit properties, was initially owned by Muange Musau who later sold the same to Henry Muli, Raphael Muthiani, Mbugua Mutheki, Elijah Thiongo and Mbithe Matoro.

11. He stated that he subsequently bought the land from the new owners and it is not true that the defendant/respondents resided on the suit properties but had merely built semi-permanent structures which they later abandoned.

12. The 1st defendant/respondent in a rejoinder filed a further affidavit dated April 4, 2022, and stated that the copy of agreements of sale between his grandfather and the purchasers are not known to him and believes that the plaintiff/applicant obtained the titles fraudulently.

13. The application was canvassed by way of written submissions. On record are the Submissions of the applicant dated March 31, 2022, and the respondents’ submissions dated April 8, 2022.

applicant’s Submissions 14. Counsel for the applicant referred to order 40 rule 2 of the Civil Procedure Rules and cited the cases of Giella v Cassman Brown [1793] EA358 and Mrao Ltd v Tirst American Bank of Kenya Ltd & 2others Civil Appeal No 39 0f 2002 to argue that temporary injunctions are granted where an applicant demonstrates a prima facie case with probability of success, where the applicant may suffer irreparable injury if an injunction is not granted and where there is doubt, the application shall be decided on a balance of convenience.

15. It’s was counsel’s view that a prima facie case is one which a court will conclude that there exists a right which has been apparently infringed by the opposite party as to call for an explanation or rebuttal from the latter. Further, that the material presented before court by the plaintiff had established a prima facie case while the Defendants have not annexed any proof that they have a legitimate claim over the suit properties.

16. On the issue of irreparable loss, counsel contended that speculative injury or unfounded fear cannot be termed as irreparable loss. The injury must be grave, actual, substantial and demonstrable. He relied on the findings in the case of Nguruman Limited v Jan Blonde & 2 others [2014] eKLR, which the court has considered.

17. Counsel placed reliance on the decision in the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR, for the proposition that if the balance of convenience is in favor of the plaintiff, it meant that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiff, the inconvenience caused to the plaintiff would be greater than that which may be caused to the defendants.

respondent’s Submissions 18. Counsel for the respondents submitted and challenged the plaintiff/applicant’s capacity to bring this suit as they pointed out that the suit properties were said to have been sold by the applicant to Reits Capital Limited and Uniconnect Limited, which allegation had not been rebutted. Their view was that the applicant was a busy body who had failed to demonstrate a prima faciecase.

19. According to the respondent, the applicant failed to explain how he got the title of the suit property from Muange Musau and his failure to disclose the current status of the suit properties demonstrate that he has approached the court for an equitable remedy, with unclean hands.

20. It was also submitted that it is clear that the respondents are in possession of the suit property and therefore they cannot be evicted during the pendency of this suit.

Analysis and Determination 21. Having considered the application, the responses as well as parties’ submissions, I am of the considered view that the following issues arise for determination;(a)Whether the applicant has met the threshold for grant of a temporary injunction.(b)Whether an eviction order should issue at this stage of the proceedings

22. The test for granting of an interlocutory injunction was considered in the American Cyanamid Co. v Ethicom Limited [1975] A AER 504 where three elements were stated to be the a prerequisite for grant of interlocutory injunction, namely;(i)There must be a serious/fair issue to be tried,(ii)Damages are not an adequate remedy,(iii)The balance of convenience lies in favour of granting or refusing the application.

23. The important consideration before granting a temporary injunction under order 40 rule 1 of the Civil Procedure Rules is the proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree or that the defendant threatens or intends to remove or dispose the property, in circumstances that will obstruct execution of any decree that may be made in favour of the applicant.

24. A prima facie case was described in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2others [2003] eKLR, as follows;In civil cases it is a case in which on the material presented to the court a tribunal properly directing itself will conclude 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.

25. In the instant case, the applicant states that he is the registered proprietor of the suit properties. On the other hand, the 1st respondent has stated that the current status of the suit property shows that they are registered in the names of Reits Capital Limited and Uniconnect Ltd. The 1st respondent has attached a copy of the title and official search certificate as annexures MMM-13a and MMM-13b, which show that parcel Donyo Sabuk/komarock 1/62416 is registered in the name of Uniconnect Company Limited, which was registered as such on December 3, 2021.

26. Besides, the respondent was categorical that the applicant had sworn an affidavit in Machakos ELC No 184 of 2017 where he alleged that he had disposed of parcel Donyo Sabuk/komarock 1/62415. I have perused the said affidavit. I note that the same was filed on September 25, 2017. An agreement dated September 15, 2016, was attached to the said replying affidavit. The agreement is for sale of parcel Donyo Sabuk/komarock 1/62416 by the applicant to Reits Capital Limited. Although the applicant filed a supplementary affidavit, no reference was made to this allegation. He neither denied nor challenged this assertion.

27. In my view, ownership and possession of the suit property are at the core of this dispute and the application turns on the issue as to whether the applicant is the registered proprietor of the suit property. This is because a certificate of title is prima facie evidence of ownership of property. Section 26(1) of the Land Registration Act, provides as follows;The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except -a.on the ground of fraud or misrepresentation to which the person is proved to be a party; orb.where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

28. Although the applicant has stated that he owns the suit properties, he nevertheless attached copies of the titles thereof without the current official searches indicating the ownership thereof as at the time of filing suit. The 1st respondent produced a search and an affidavit sworn by the applicant, both showing that the suit properties were owned by third parties and not the applicant. As the applicant has not attempted to rebut the 1st respondent’s contention on the current status of the suit properties, it is doubtful if indeed at the time of filing this suit, he was the registered proprietor thereof. That doubt means that the applicant has failed to demonstrate a prima facie case with chances of success. That being the case, I need not interrogate the issue as to whether the applicant will suffer irreparable loss or in whose favour the balance of convenience tilts, as that would only be necessary where the applicant has shown a prima facie case.

29. On whether an order of eviction should issue, it is on record that the respondents are in occupation of the suit property and that is why the applicant has sought for their eviction both in the plaint and in the instant application. Whether the occupation is lawful or not is a matter that can only be unraveled at the trial. In my considered view, granting an order of eviction at this stage, would amount to condemning the respondents unheard as there will be nothing pending at the hearing if that prayer is allowed at the interlocutory stage, as that is the same prayer sought in the main suit.

30. The upshot is that the Notice of Motion dated March 4, 2022, is unmeritorious and the same is dismissed with costs.

31. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 24th DAY OF NOVEMBER 2022 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the presence of;Mr. Kiluva holding brief for Mr. Mutua for the Applicant.Mr. Mutuku for the respondents.Ms Josephine Misigo – Court Assistant