[2019] KEELC 3383 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAJIADO

ELC CASE NO. 106 OF 2018

KUKU GROUP RANCH......................................................PLAINTIFF

VERSUS

IL PARAKUO RANCHING

COOPERATIVE SOCIETY LIMITED....................1ST DEFENDANT

COUNTY GOVERNMENT OF KAJIADO.............2ND DEFENDANT

LAND REGISTRAR, KAJIADO COUNTY............3RD DEFENDANT

RULING

What is before Court for determination is the Plaintiff’s Notice of Motion dated the 28th June, 2018 brought pursuant to Section 3A of the Civil Procedure Act, Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules; Section 25 and 26 of the Land Registration Act as well as all the other enabling provisions of the law. The Plaintiff seeks injunctive orders against the Defendants in respect to land parcel number KAJIADO/ KUKU/ 19 hereinafter referred to as the ‘suit land’.

The application is premised on the summarized grounds that the Plaintiff is the duly registered proprietor of the suit land, which was hived off KAJIADO/ KUKU/ 23 and set aside as a livestock holding ground at Inkisanjani Area within the Group Ranch. Sometime in 2014, the Plaintiff learnt that Inkisanjani Holding Ground which is within the suit land had been transferred to the 1st Defendant by the 2nd Defendant which had been entrusted with the said land. The Plaintiff has been aggrieved by disposition of the suit land to the said individuals as it is not only illegal but also unlawful and a breach of trust including fiduciary obligations entrusted to the 2nd Defendant. The 1st Defendant has now threatened to demolish the Plaintiff’s houses, trespass, sell, dispose, waste, alienate and otherwise deal with the suit land. If the Defendants are not restrained over the aforementioned acts in respect of the suit land, the Plaintiff stands to lose it as well as suffer irreparable loss and damage incapable of compensation in monetary terms.

The application is supported by the affidavit of JOHN SUSEN who is a member of the Plaintiff where he claims over 25 families currently reside on land parcel number KAJIADO/ KUKU/ 23 owned by it. He explains that in the 1975 the Plaintiff allocated several portions of their land for public utility purposes, inter alia, water points, health centres, cattle dips, schools, trading centres and livestock holding ground. He claims the suit land was hived off KAJIADO/ KUKU/ 23 and set aside as livestock holding ground. Further, that the title to the suit land was vested in the 2nd Defendant to hold in trust for the people ordinarily resident in the area and the larger Loitokitok Community.

The application is opposed by the 1st Defendant whose Chairman METOYI OLE LOOMBA PARMOYA filed a replying affidavit where he deposes that the 1st Defendant is the proprietor of the suit land since the same was allocated to it by the defunct Ol Kejuado County Council. He explains that in the year 1975, the suit land was reserved as a livestock holding ground and the same was allocated to the Ol Kejuado County Council while KAJIADO/ KUKU/ 23 was allocated to KUKU “B” Group Ranch. He contends that they applied to the Ol Kejuado County Council to be allocated the suit land to undertake agricultural activities especially livestock fattening and after adhering to the legal process and paying Kshs. 10,000 as stamp duty, the 1st Defendant was duly registered as its proprietor. He insists that as per registration as it is apparent on the face of record, the suit land was the first one in time to be registered since the register was opened on 5th May, 1975 while KAJIADO/ KUKU/ 23 belonging to the Plaintiff had its’ register opened on 13th January, 1978. He reiterates that the 1st Defendant was allocated land in the year 1986 and some of its members are drawn from the Plaintiff. Further, after lodging a complaint through the Governor of Kajiado County, over the suit land, a Restriction was entered but the same was later withdrawn by the Land Registrar, after issuance of a ‘no objection’ by the County Land Management Committee that had deliberated over the dispute. The 1st Defendant denies threatening to demolish houses belonging to the Plaintiff and contends that its membership is much smaller than the Plaintiff’s. He avers that they have resided peacefully on the suit land and this suit offends the provisions of sections 7 and 9 of the Limitation of Action Act. Further, by virtue of section 145 (f) and (g) of the Local Government Act, since the suit land belonged to the 2nd Defendant, it was entitled to deal with it in a manner it deemed fit including allocating it to the 1st Defendant.

The 2nd Defendant opposed the application and filed a replying affidavit sworn by one FRANCIS SAKUDA, its County Secretary who deposes that the 2nd Defendant under the defunct Ol Kejuado County Council was legally mandated by the Local Government Act (now repealed) and the Constitution (1963), to allocate land to a community member, who applied for it and intended to use it rightfully for the residents’ benefit. He contends that the Ol Kejuado County Council held the suit land known as Nkisanjani Holding Ground as a trust land. He denies that the suit land was hived off from KAJIADO/ KUKU/ 23 as alleged and insist the two are distinct parcels of land. He explains that in the year 1981 the 1st Respondent being an interested applicant and member of the community formally applied for allocation of the suit land for purposes of venturing into livestock keeping. Further, the application was approved on 17th November, 1981 and the Clerk authorized the processing of the allocation of suit land to the 1st Defendant. He explains that the 2nd Defendant vide a letter dated 7th October, 1982 to the Commissioner of Lands communicated its approval for allocation of the suit land to the 1st Defendant. He denies any fraudulent acts or representation by the 2nd Defendant in transferring suit land to the 1st Defendant. He insists the suit contravenes the provisions of section 7 and 9 (1) of the Limitation of Actions Act as it has been overtaken by events since the suit land was allocated in 1982. He reiterates that the Plaintiff will not suffer any prejudice whatsoever as it has no legal claim over the suit land.

The Plaintiff through JOHN SUSEN filed a further affidavit where it reiterates its claim and insists the suit land was hived off KAJIADO/KUKU/ 23 and was meant to be the livestock holding area. He claims the Defendants have commenced subdividing and disposing off the resultant subdivisions to their detriment. Further, that on various dates between 2nd July, 2018 and 4th September, 2018, the Defendants applied to the Director of Physical Planning, Kajiado County requesting for suit land to be subdivided into 164 subplots and also approve construction thereon. He explains that they took long to file the suit land as they were still trying to resolve the matter at the local level and that they are the rightful owners of the same. He insists the documents presented to show ownership have been falsified.

The Plaintiff, 1st and 2nd Defendants filed their respective submissions that I have considered.

Analysis and Determination

Upon consideration of the materials presented in respect of the application dated 28th June, 2018 including the respective affidavits as well as submissions, the only issue for determination is whether the Plaintiff is entitled to orders of temporary injunction pending the outcome of the suit.

The Plaintiff claims it is the owner of the suit land which it discovered was registered in the name of the 1st Defendant in the year 2014. Further, that the suit land had been set aside as a livestock holding ground. The 1st Defendant insists it is the proprietor of the suit land and has produced a Certificate of Title dated the 23rd December, 1986 to that effect. The 2nd Defendant confirms that it allocated the 1st Defendant the suit land to use for the community benefit. The Plaintiff insists that the suit land was hived off their land KAJIADO/ KUKU/ 23 and contend that documents of ownership presented by the 1st Defendant have been falsified.

The principles for consideration in determining whether temporary injunction can be granted or not is well settled in the case of Giella Vs. Cassman Brown & Co. Ltd (1973) EA 358.

In line with this principle, the Court will proceed to interrogate whether the applicant has made out a prima facie case with a probability of success at the trial.

In the first instance as to whether the applicant has demonstrated a prima facie case with probability of success, I wish to refer to the case of Mrao V First American Bank of Kenya Ltd & 2 others (2003)KLR 125where the Court defined what a prima facie case is. I note the Plaintiff holds a title to land parcel number KAJIADO/KUKU/ 23 while the 1st Defendant holds a Certificate of title to the suit land. The 2nd Defendant which is the successor to the defunct Ol Kejuado County Council confirmed that in the year 1981 it allocated the 1st Defendant the suit land, after which it sent the approval to the Commissioner of Lands to that effect. On a keen perusal of the two Certificates of Title, I note the 1st Defendant’s title actually precedes the Plaintiff’s title yet it is claiming the suit land was hived off its land. Looking at the documents of title presented by the 1st Defendant it is evident, it adhered to the proper legal process to acquire it, hence its claim over the suit land is not baseless.

Section 25(1) of the Land Registration Act provides as follows:-

‘25. (1)The rights of a proprietor whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act and shall be held by the proprietor together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever but subject.’

From the Plaintiff’s averments, it seeks to defeat the 1st Defendant’s title and claims it was not properly acquired. It blames the 2nd Defendant for breaching the community trust and allocating the suit land to the 1st Defendant. However, the claim by the Plaintiff that it owns the suit land is contrary to the provisions of section 25(1) of the Land Registration Act. Further, by dint of section 107 of the Evidence Act, I opine that it is incumbent upon the Plaintiff to prove that the title it is claiming over the suit land was acquired irregularly as well as illegally. It is my considered view that, some of the issues being raised by the Plaintiff cannot be determined at this interlocutory stage.

In the case of Mureithi V City Council of Nairobi (1979) eKLR the Court of Appeal reaffirmed that the object of interlocutory judgement is to protect the Plaintiff against injury by violation of his right. With the facts as presented and relying on the above decision, I find that the Plaintiff has not demonstrated the violation it has suffered since the suit land has been registered in the 1st Defendant’s name for about 36 years. In the circumstances, I hold that the Plaintiff has not established a prima facie case with a probability of success at the trial.

On the second principle as to whether the Plaintiff stands to suffer irreparable loss, which cannot be compensated by way of damages. Since the 1st Defendant has been registered as proprietor of the suit land for about 36 years and with its title confirmed by the 2nd Defendant which legally allocated the said land to it. I will rely on the case of Case of Nguruman Ltd. Vs. Jan Bonde Nielsen CA No. 77 of 2012, wherethe Court of Appeal held that in an application seeking injunctive relief, speculative injury cannot suffice and there must be more than unfounded fear and the injury should be actual as well demonstrable that cannot be compensated by damages.; and find that Plaintiff’s injuries are speculative as it has failed to demonstrate the harm it stands to suffer if the orders sought are denied.

On the question of balance of convenience, from the evidence presented by the parties, I am not in doubt that at this juncture, the balance indeed tilts in favour of the 1st Defendant which is the registered proprietor of the suit land and holds a title to that effect.

It is against the foregoing that I find the application dated the 28th June, 2018 unmerited and will proceed to dismiss it with costs.

Dated signed and delivered in open court at Kajiado this 9th May, 2019

CHRISTINE OCHIENG

JUDGE