[2021] KECPT 12 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 022 OF 2021 (233 OF 2021)

KONZA RANCHING & FARMING CO-OPERATIVE SOCIETY LTD.......................CLAIMANT

VERSUS

JOSEPH MWANDO MUSAU........................................................................................RESPONDENT

RULING

1. On 19th May 2021, the Claimant filed a Notice of Motion Application dated 18th May 2021 under Certificate of Urgency. The crux of the matter is to stop the Respondent from interfering with Plot No. 1710 measuring 0. 7797 acres, Title Deed No/. Konza/South Block 5 (Konza)/2160 (0. 3078 Ha) [hereinafter, “the suit property”], which property is set aside as a public utility.

2. The said Respondent has been accused of unlawfully encroaching on the suit property and fenced it. The said Respondent has commenced making developments in the suit property. A ground map and map sheet have been produced annexed and marked as DNM 3(a)and(b) in the affidavit dated 18th May 2021 deponed by one D.M. Mutangili.

3. The Respondent neither entered appearance, nor put in any reply to the Notice of Motion, and the Application stands unopposed. The Claimant filed Submissions, which we have read and deliberated upon.

4. The Claimant is seeking mandatory injunctions as well as prohibitory injunctions. For the grant of mandatory injunctions, the principles were set out by the Court of Appeal in Kenya Breweries Ltd and Another -vs- Washington Okeyo (2002) 1 E.A. 109wherein it was held that that there must be special circumstances shown over and above the establishment of a prima facie case for a mandatory injunction to issue, and even then, only in clear cases where the court thinks that the matter ought to be decided at once.

5. What constitutes a prima facie case? The Court of Appeal in Mrao Ltd -vs- First American Bank of Kenya Ltd & 2 Others[2003] eKLR statedas follows:

“...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 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.”

6. We are convinced that the Application meets the thresholds of Interlocutory Injunctions enunciated in stated in Giella -vs- Cassman Brown & Co Ltd, (1973) EA 358. We are also convinced that the Clamant has demonstrated a clear legal right which is being infringed by the Respondent.

7. We therefore find in favour of the Claimant that, it is in the interest of justice for the Respondent to be restrained from interfering with the suit property. Additionally, we are contented that the suit property be preserved in its, and the Respondent be compelled to remove any and all materials belonging to the Respondent from the suit property, pending the hearing and determination of the suit.

8. There being response by the Respondent, there is no reason why the Claimant as registered owner should be denied possession of the suit property. In any event the parties still have the opportunity to argue their respective cases at full trial, including on the issues as to whether there is any claim on the suit property by the Respondent, and no final order or determination of the suit is being made at this stage by the mandatory injunction being granted, as possession into the suit property can still revert back to the Respondent in the event that he proves his entitlement.

ORDERS

We therefore Order as follows:

(a) The Claimant’s Application dated 18th May 2021 is allowed;

(b) Interim orders by way of injunction is hereby granted against the Respondent by himself or through his agents, servants or assigns is restrained from trespassing upon, construction, developing, selling , offering for sale, transferring, leasing, charging or in any way interfering with plot no. 1710 measuring 0. 7797 acres, title deed No. KONZA/SOUTH KONZA SOUTH BLOCK 5 (KONZA)/2160(0. 3078Ha) or any part thereof and from harassing, threatening, intimidating or in any way causing disharmony to the applicant or its members pending the hearing and determination of this application.

(c) Interim orders by way of injunction is hereby granted against the Defendant/Respondent by himself or through his agents, servants or assigns is restrained from trespassing upon, construction, developing, selling , offering for sale, transferring, leasing, charging or in any way interfering with plot no. 1710 measuring 0. 7797 acres, title deed No. KONZA/SOUTH KONZA SOUTH BLOCK 5 (KONZA)/2160(0. 3078Ha) or any part thereof and from harassing, threatening, intimidating or in any way causing disharmony to the applicant or its members pending the hearing and determination of this application.

(d) That interim orders are granted ordering the Respondent to remove the illegal fence and construction materials thereof in default of which the said will be removed forthwith by the claimant pending the hearing and determination of this application.

(e) That the OCS Machakos Police Station is hereby ordered to enforce the orders of this Honourable Tribunal.

(f) Costs of the Application be in the cause.

(g) Mention for Directions on 6. 12. 2021

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2021.

Hon. B. Kimemia Chairperson Signed 7. 10. 2021

Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021

Mr. P. Gichuki Member Signed 7. 10. 2021

Mr. B. Akusala Member Signed 7. 10. 2021

Tribunal Clerk R. Leweri

Sagini holding brief Orina for the Claimant/Applicant

Joseph Mwando – No appearance