[2021] KECPT 272 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.496 OF 2020

KONZA RANCHING & FARMING CO-OPERATIVE

SOCIETY LIMITED ...........................................................................CLAIMANT

VERSUS

JOHN KIMEU MUINDI............................................................1ST RESPONDENT

ROBERT NZUKI KAMETU....................................................2ND RESPONDENT

PURITY MUTHEU MUTUA...................................................3RD RESPONDENT

RULING

1. The Application for determination is one dated 24. 11. 2020 it is brought under Order Rule 1 and 2 Order 51 Rule 1 Civil Procedure Rules 2010, Section 3A, Civil Procedure Act Cap 21 and all other enabling provisions and seeks for orders:

a. That the Application be heard ex-parte in the first instance and the same be certified as urgent.

b. That pending the hearing and determination of this Application, the 1st, 2nd and 3rd Defendants /Respondents by themselves or through their agents, servants or assigns be restrained from trespassing upon, constructing , developing , selling, offering for sale, transferring, leasing, charging or in any way interfering with plot No. 213 Makueni or any party thereof and from harassing, threatening, intimidating or in any way causing disharmony to the Applicant or its members.

c. That pending the hearing and determination of this Application, the 1st Respondent be ordered to remove the 2nd and 3rd Respondents that he illegally installed in plot No. 213 or any party thereof in default of which the said persons be evicted forthwith by the Claimant.

d. That the OCS Machakos Police Station does enforce the orders of this Honourable court.

e. That the costs of this Application be provided for.

2. The Application is premised on the grounds on the face of the Application to wit the Claimant/Applicant is a Co-operative society duly registered with some aim of providing land and housing to its members.

The Claimant is the legal owner of plot No. 213 Makueni to which it resolved to sub-divide and allocate it to its members using ballot papers.

That the 1st Respondent working in cohorts with 2nd and 3rd Respondent who were not members of the Claimant fraudulently picked 2 ballot papers No. 213 and 214.

Efforts by the Claimant/ Applicant to obtain assistance in removing the 2nd and 3rd Respondent from the said plots have proceed futile.

3. The Application is supported by the Affidavit of D.M Mutagili who is the Chairman of the Claimant.

Plot No. 213 was held in trust for its members following a resolution of Claimant members passed at a Special General Meeting on 18. 12. 1999. each member of the Claimant was allotted 2 acres.

That upon completion of the sub-division Claimant prepared ballot papers for its members for easy distribution of plots.

The 1st Respondent who is member of Claimant was to pick only one ballot however in cohorts with 2nd and 3rd Respondents he picked 2 ballots papers No. 213 and 214.

1st Respondent unlawfully installed plot No. 213 to the 2nd and 3rd Respondents.

The 1st Respondent on being questioned by Claimant on how he got 2 ballot papers he admitted he had fraudulently taken 2 ballot papers and agreed to surrender plot No. 213.

The 1st Respondent swore an Affidavit to that effect marked ‘DMM3’

When time came for 1st Respondent to be allocated 10. 8acres plot he cunningly evaded efforts by Claimant to hive off 2 acres originally agreed in his sworn Affidavit.

Claimant/ Applicant has unsuccessfully tried to evict the 2nd and 3rd Respondent however they have not managed and are apprehensive to lose their property, exposed to imminent danger and more so stand to suffer irreparable loss.

4. The 1st Respondent responded to the Application by filing Grounds of Opposition dated 1. 3.2021 on 2. 3.2021.

In the said Grounds of Opposition he stated the Application was incompetent and abuse of the Tribunal process.

The orders sought in the Application are similar to those in the Statement of Claim as such granting the orders would amount to allowing the Statement of Claim without parties giving evidence.

The Claimant filed a response to the Grounds of Opposition sworn on 22. 3.2021 and filed on even date. He reiterated contents of his Affidavit in support of the Application and added that the Affidavit of the 1st Respondent annexed in his Affidavit sworn on 24. 11. 2020 marked as DMM3 admitted to fraud and the court should not be taken into a rigorous trial process on issues which have already been admitted by a party.

5. The 1st Respondent filed a further Affidavit in response and stated parcel no. 213 Makueni was legally allocated to him.

That he did not admit in writing the particulars of fraud complained if by the Claimant and would seek to cross examine the Advocate who allegedly drafted the Affidavit.

That the 2nd and 3rd Respondent are legally on the suit property since year 2000 and will suffer irreparably if orders sought are granted at an interlocutory stage.

That the 1st Respondent never relinquished his rights one land parcel NO. 213 Makueni.

Parties were directed to file written submissions to dispense off the application and as such the Claimant /Applicant filed their written submissions dated 22. 3.2020 on 23. 3.2021 and 1st respondent filed their written submissions dated 21. 5.2021on 26. 5.2021.

The 2nd and 3rd Respondent did not enter Appearance in the matter to the said Application.

6. Analysis

Having considered the pleading, Affidavit and submissions of all the parties we note the issues to be addressed are:

Issue one:

TRESPASS: is there trespass by 2nd and 3rd Respondent

Issue two: Whether Interlocutory Orders should be issued against the Respondent.

Issue One:

Section 3 (1) Trespass Act Cap 294 provides that:

“Any person who without reasonable excuse enters is or remains upon or erects any structure on or cultivates or tills or grazes stock or permits stock to be or, private and without the consent of the occupier thereof shall be guilty of an offence..”

The 2nd and 3rd Respondent who are the ‘trespassers’ in this case were served with the application as per the affidavit of service of Alphonse Kyalo Kasimu filed on 1. 3.2021 but failed to enter appearance or file a response to the Application.

The 2nd and 3rd Respondent are in occupation of the land in question and Applicant seeks for orders the 1st , 2nd and 3rd Respondent be restrained from trespassing, constructing, developing, selling, offering for sale, transferring, leasing, charging or in any way interfering with plot No. 213 Makueni or any party thereof and from harassing, threatening, intimidating or in any way causing disharmony to the Applicant or its members.

And secondly the Applicant wishes for the 1st Respondent to be ordered to remove the 2nd and 3rd Respondent since he is the one who illegally instructed them in plot No. 213.

7. We have considered the Applicant’s case as pleaded and evidence tendered against the 1st , 2nd and 3rd Respondent in form of annextures to the Affidavits by the Claimant and would wish to state as follows:

Trespass has been defined as any unjustifiable intrusion by one person upon the land in the possession of another see Clerk and Lindsell on Torts , 18 edition page 923.

The onus is on the Applicant to prove he is the owner of the property in question and that the Respondent have invaded and occupied the same without any justifiable cause.

8. From the Affidavits what is clear the land where the 2nd and 3rd Respondent are belonged to the Applicant.

The 2nd and 3rd Respondent got into the land by virtue of 1st Respondent.

For some reason they did not find it fit to respond to the Application and the 1st Respondent as it were from his Affidavits and responses is the one pleading their case.

It is yet to be established whether the Respondent trespassed in the land if at all.

In our view this can only be done during trial.

9. Issue No. 2

Whether Interlocutory Orders can be issued.

For any Application to be granted orders and injunctions the law is well articulated in the case of Giella - vs- Cassman Brown and Company Limited [1973] EA 358 where the court held the Applicant must establish.

1. Prima facie case

2. Harm- suffer irreparable harm not adequately compensated for in damages.

3. Balance of convenience ...who is likely to suffer prejudice in orders are given or not.

In the Application before us the question to ask is whether a prima facie case been established by the Applicant?

A prima facie case was defined by the Court of appeal in the case of Mrao Limited -vs- first American Bank of Kenya Limited and 2 others [2003] KLR 1215as:

“ A Prima facie case in a civil Application 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 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.”

Indeed the Applicant has established a case against the 1st 2nd and 3rd Respondent.

2nd question- has the Applicant illustrated they shall suffer irreparable harm that would not adequately be compensated for in damages.?

The harm to this end would mean the Applicant has lost land which in our view can be compensated.

3rd question – on the issue of balance of convenience, the same tilts in favour of the Claimant/Applicant being the aggrieved party and having evidenced the same. The 1st Respondent has not shown that they will suffer harm/prejudice if the Applicants are granted the injunctive reliefs.

10. Upshot

In view of the foregoing we find the Notice of Motion dated 24. 11. 2020 has merit and grant the following orders as per Rule 3 and 4 Co-operative Tribunal (Practice and Procedure Rules) 2009.

1. Pending hearing and determination of the suit herein the 1st , 2nd and 3rd Respondents are restrained from developing selling, offering for sale, transferring, leasing , charging plot No. 213 Makueni.

Ruling signed, dated and delivered virtually at Nairobi this 29thday of July, 2021.

Hon. B. Kimemia Chairperson Signed 29. 7.2021

Hon. J. Mwatsama Deputy Chairperson Signed 29. 7.2021

Mr. Gitonga Kamiti Member Signed 29. 7.2021

Tribunal Clerk Charles Maina

Sagini holding brief for Orina for Claimant/Respondent

Nyaata Advocate for Respondent

Mention for Pre-trial on 17. 9.2021

Parties to file witness statement and documents within 30 days herein.

Hon. B. Kimemia Chairperson Signed 29. 7.2021