[2023] KEELC 22008 (KLR)

Langton Investments Limited v Meron Limited & 2 others (Environment & Land Case E139 of 2023) [2023] KEELC 22008 (KLR) (4 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22008 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E139 of 2023

EK Wabwoto, J

December 4, 2023

Between

Langton Investments Limited

Plaintiff

and

Meron Limited

1st Defendant

The Chief Land Registrar

2nd Defendant

The Director Land Administration

3rd Defendant

Ruling

1. On 22nd November, 2023, this Court after considering the Plaintiff’s application dated 31st October, 2023 issued inter alia an order of injunction restraining the 1st Defendant from entering, selling, transferring, alienating, developing or dealing with the suit property L.R. No. 28401 including any subdivision therefore pending the hearing and determination of the suit.

2. The 1st Defendant being aggrieved by the said orders has now moved this court vide its application dated 24th November, 2023 seeking for the following orders:i.Spent.ii.That the Honourable Court be pleased to stay the orders of injunction issued on 22nd November, 2023 and reinstate the orders of status quo issued on 10th November, 2023 the Applicant being in possession of the suit properties.iii.That Costs of this application be provided for.

3. The said application was based on the grounds set out on the face thereof and the supporting affidavit of Peter Maina Mwangi sworn on 24th November, 2023.

4. The application was opposed by the Plaintiff vide grounds of opposition dated 28th November, 2023 and the Replying Affidavit sworn by David Mucai Kunyiha on 28th November, 2023. The 2nd and 3rd Defendant equally opposed the same vide oral submissions made by their counsel.

5. During the plenary hearing of the application on 29th November, 2023, learned Senior Counsel Mr. Kiragu Kimani and learned Counsel Stephen Njeru appeared for the Plaintiff while learned State Counsel Allan Kamau appeared for the 2nd and 3rd Defendants and learned Counsel Mr. Justus Mutunga appeared for the 1st Defendant.

6. The 1st Defendant contended that on 10 November 2023, the Honourable Court issued orders of status quo over that parcel of land known as Land Reference No. 28401 (IR 152720) regardless of the party in possession of the suit premises. This order was necessitated by the competing claims by the Plaintiff herein on the one hand, and, the Applicant, who was the Plaintiff in ELC Suit No. E153 of 2023, Meron Limited -vs- Langton Investments Ltd & 2 others.

7. That on 22nd November 2023 when this matter and ELC No. E153 of 2023 came for directions, the counsel who appeared for the Applicant did not inform the court of the client's express suggestion that the withdrawal of ELC E153 of 2023 was subject to the concurrence by the other parties herein and by the court and further subject to maintaining the status quo over the suit properties so that the matter herein could proceed to full trial.

8. On the same day, the court vacated the status quo orders that had been issued earlier and made injunctive orders against the Applicant which orders have adverse and far-reaching consequences against the Applicant, who is currently in possession of the suit premises.

9. It was also argued that the Plaintiffs/Respondent's counsel failed to disclose to the Court material information that the Applicant is in actual possession of the suit premises and has been growing crops and tree seedlings for sale on the properties and has further employed farmhand men who derive their Income from the saint farming activities.

10. The injunctive orders issued herein have the effect eviction orders issued at an interlocutory stage and the Plaintiff/Respondent is now using the said orders to evict the Applicant from the suit premises.

11. It was argued that the subject parcel of land was sub-divided into six (6) parcels namely Nairobi/Block 219/48, Nairobi/Block 219/49, Nairobi/Block 219/50, Nairobi/Block 219/51, Nairobi/Block 219/52 and Nairobi/Block 219/53 which parcels are all registered in the name of the Applicant as evidenced by the current searches.

12. The Applicant contended that as the registered owner, the Applicant's titles are protected by the doctrine of indefeasibility of title as provided under section 26(1) of the Land Registration Act and the said titles can only be impeached after a full trial.

13. By making the injunctive orders, the court made orders whose implementation is impractical as the Applicant is still in possession of the suit premises hence the court ought not to have issued an order whose effect is to restrain that which has already occurred.

14. As a result, the orders of injunction currently in force have put the Applicant in a precarious position as it stares at being evicted from the suit properties and its economic farming interests have been put into serious jeopardy.

15. The Applicant further contended that in the prevailing circumstances, the orders of status quo as issued earlier by the court are the most apposite orders to avoid a further miscarriage of justice against the Applicant.

16. The Plaintiff in opposing the application argued that the 1st Defendant represented by Mr. Manyonge who received instructions from the firm of Mutunga Justus & Associates Advocates did not adduce any evidence at the hearing of the plaintiff's injunction application dated 31st October 2023 on 22nd November 2023 in relation to possession to controvert the evidence put forth by the plaintiff and the 2nd defendant.

17. It was argued that Order 40 Rule 4 of the Civil Procedure Rules, 2010 cannot be invoked to discharge, vary, or set aside the order for injunction made on 22nd November 2023 unless there has been a change of circumstances. The circumstances prevailing on 22nd November 2023 when the injunction order was made have not changed.

18. It was submitted that an injunction order cannot be set aside unless, subsequent to the issuance thereof, circumstances exist that render the continued retention of the injunction unreasonable or unjustifiable. A party cannot seek to benefit from its own illegality, neither can it come to equity with unclean hands. The 1st Defendant violated the status quo orders made on 10th November 2023 which it seeks to reinstate, when it put up structures at the suit property on 14th November 2023.

19. In respect to the notice of withdrawal, it was argued that a notice of withdrawal takes effect immediately upon filing. The 1st Defendant’s notice of withdrawal dated 21st November 2023 in respect of Nairobi Environment and Land Case Number E153 of 2023- Meron Limited versus Martin Ngige, Peter Chege Ebson and Langton Investments Limited took effect immediately.

20. The Plaintiff also argued that the suit had not been set down for hearing and therefore it was proper for the court to make the order of 22nd November 2023 allowing the notice of withdrawal dated 21st November 2023 under Order 25 Rule 1 of the Civil Procedure Rules.

21. The Plaintiff relied on the following authorities in opposition to the application which the court has duly considered; Mohamed & Another v Haidara [1972] EA 166 at 168, Kamau Mucuha v Ripples [1993] eKLR, Morris & Company v Kenya Commercial Bank [2003] eKLR and Nicholas Kiptoo Arap Korir Salat vs Independent and Boundaries Commission & 7 Others [2014] eKLR.

22. The 1st defendant having conceded to the giving of directions at this stage cannot move the court for deviation of the order made.

23. The 2nd and 3rd Defendants in opposition of the application argued that the orders were not issued in error and that the 1st Defendant acted in breach of the said orders and doesn’t deserve any orders from this Court. It was also argued that the affidavit of Evans Arekeya Omulubi, the Senior Assistant Chief of garden Sub-location was clear as to the status of the suit property and definitely the 1st Defendant was not currently in occupation of the same. The Court was urged to dismiss the application with costs.

24. I have considered the application, rival affidavits filed and oral submissions made by counsel of the parties. The main issue for determination by this Court at this stage is whether the Applicant/1st Defendant has met the threshold for review and or variation of the orders given by this Court on 22nd November, 2023.

25. The jurisdiction of the court to set aside an or vary an order of injunction is outlined under Order 40 Rule 7 Civil Procedure Rules, 2010 which provides as follows:“Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.”

26. From the foregoing it is clear that the conditions under which an order of injunction may be discharged, or varied, or set aside are not stipulated thereunder. It is, however, clear that the said rule does not limit the Court’s powers to discharge, vary or set aside an order of injunction. In the instant case, the Court on 22nd November, 2023 gave the following orders:i.That pending the hearing and determination of this suit, there be an order of injunction restraining the 1st Defendant whether by themselves, their members, beneficiaries, employees, servants and /or agents and anyone from entering on, selling, transferring, alienating, developing or whatsoever dealing with the suit property being L.R. No. 28401 and/or including any subdivision thereof.ii.That the Defendants are granted 30 days to file their defence, witness statements, bundle of documents and a compiled trial bundle.iii.That this matter shall be mentioned on 6th February, 2024 to confirm compliance.iv.That hearing of the main suit to proceed on 11th and 16th April, 2024.

27. The orders were given based on the facts placed before the Court by all the parties.

28. The 1st Defendant has now come to Court and averred that there was an error on the part of Counsel who appeared on its behalf on 22nd November, 2023 as he failed to inform the Court of the 1st Defendant’s express suggestion that the withdrawal of ELC E153 of 2023 was subject to the concurrence by other parties herein and by the Court and further subject to maintaining the status quo over the suit properties so that the matter herein could proceed to full trial.

29. It was also argued that the Plaintiff’s counsel failed to disclose to the Court material information that the Applicant is in actual possession of the suit premises and has been growing crops and tree seedlings for sale on the suit properties.

30. From the pleadings and information availed by the parties to this Court, it now appears that the 1st Defendant is trying to litigate over the issue of ownership of the suit property through interlocutory applications. In the instant application, Counsel who appeared for the 1st Defendant on 22nd November, 2023 when the orders were issued has not sworn any affidavit or demonstrated the averments now being made that there was an error on his part when he failed to communicate to the Court the clear instructions of his client.

31. Further the 1st Defendant has not availed any new information that was not available to the court at the time of issuance of the orders on record. It will not be in the best interest to review the orders issued by the Court at this stage.

32. In the circumstances, I will direct that the issues raised by the 1st Defendant be considered during trial now that the suit has been set down for hearing.

33. In view of the foregoing, this Court finds that the 1st Defendant’s application dated 24th November 2023 lacks merit and the same is dismissed with no order as to costs.

RULING DATED, SIGNED AND DELIVERED BY EMAIL AT NAIROBI THIS 4TH DAY OF DECEMBER, 2023. E. K. WABWOTOJUDGE