[2015] KEHC 2581 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

PETITION NO.12 OF 2013

IN THE MATTER OF ARTICLE 22 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL

RIGHTS AND FREEDOMS UNDER ARTICLES 27, 40, 48 AND 50 AS READ

TOGETHER WITH ARTICLES 19, 20, 22, 23 AND 24 OF THE CONSTITUTION

OF KENYA AND SECTION 19 OF THE SIXTH SCHEDULE OF THE

CONSTITUTION OF KENYA

BETWEEN

MAHESH RAICHA ....................................................................................................PETITIONER

VERSUS

THE HON. ATTORNEY GENERAL …....................................................................1ST RESPONDENT

THE PRINCIPAL SECRETARY MINISTRY OF LAND

AND HOUSING............................................................................................................2ND RESPONDENT

THE INSPECTOR GENERAL, KENYA POLICE SERVICE .................................3RD RESPONDENT

RULING

Mahesh Raicha, the Applicant filed the notice of Motion dated 30th October 2013 against the Hon. Attorney General, Principal Secretary, Ministry of Land and Housing, and The Inspector General, Kenya Police Service, hereinafter referred to as 1st to 3rd Respondents respectively, for the following prayers:

“ 1. .. (spent).

That a conservatory order in the nature of injunction do issue by way of conserving the petitioner's right to property and directing the Respondent from acting in any manner that my frustrate the Applicant's quiet and peaceful occupation of the suit property herein designated as Kisumu/Municipality/Block 8/498, pending the hearing and determination of this petition.

That a mandatory injunction do issue by way of conserving the petitioner's right to property and directing the 2nd and 3rd Respondents to surrender vacant possession of the property herein designated as Kisumu/Municipality/Block 8/498 measuring 0. 662 hectares pending the hearing and determination of this petition.

4. That the costs of this application be borne by the Respondents.

The Applicant has set out five grounds on the face of the application. The application is supported by the Applicant's affidavit sworn on 30th September 2013. The Application is opposed by the Respondents through the replying affidavit sworn by Michael Ben Osewe, the Senior Assistant Director Estates Management, on 4th June 2014. When the application came up for hearing on 19th March 2015, Mr Ouma and M/S Aliongo for the Applicant and Respondents respectively agreed to have the application dealt with through written submissions. Both Counsel filed written submissions.

The Applicant's case is that he bought the suit property and got registered as the proprietor regularly. He has availed a copy of the Certificate of lease issued in his names on 28th July 2008. The Applicant therefore submits that he is entitled to both the conservatory order and mandatory injunction so as to get possession of the suit property pending the hearing and determination of the petition. The Applicant's counsel refered the court to the following decided cases in support of their submissions.

(a) Gladys Boss Shollei – V- Judicial Service Commission & 3 others Nairobi H.C Petition 421 of 2013.

(b) Milcah Jeretto Tallam T/A milcah Faith Enterprises - V – Fina Bank Ltd & Another Nairobi H.C. No.332 of 2012.

(c) Redland Bricks Ltd – V – Morris {1970} AC 652{1969 ] 2 ALLER 576.

(d) Bonner – V – Greatero Western Railways Company 1883 24 ChD 1 Page 10.

On the other hand, the Respondents opposes the application taking issue with the process though which the applicant acquired title to the suit property. The Respondents position is that the suit property is Government property on which exist a residential building that have been occupied by public officers. The Respondents counsel submitted that the Applicant has not come within the principles set out in the case of Giella – V – Cassiman Brown & Co. Ltd {1973} E A 358 for the prayers sought to be granted.

The counsel refered the court to the case of Industrial and Commercial Development Cooperation – v – Kenya Bus Services & 2 others {2007} e KLR.

The main issue for determination is whether the Applicant has established a case for issuance of the conservatory and mandatory injunction at this stage.

The court has considered the grounds on the application, the supporting and replying affidavits plus the submissions by both counsels and come to the following conclusions.

(a) That the proceedings was commenced through the petition dated 30th October 2013 that was filed at the same time with the application subject matter of this ruling.

The petition contains seven prayers marked (i) to (vii). Prayers (i) is for conservatory orders barring the Respondents from interfering with the petitioner's quiet ownership,possession and occupation of the suit land while prayer (vi) is for an order directing the 2nd Respondent to validate the petitioners title to the suit property.

(b) That from the affidavit evidence availed by the parties, it is apparent that though the Applicant is the one registered as proprietor of the suit land, he has not taken possession of the same as the residential houses on it have been occupied by public officers as detailed in paragraph 5 of the replying affidavit that has not been

challenged by the Applicant. The Applicant seeks to get possession of the suit land through mandatory injunction prayed for in paragraph 3. Though this court has no doubt that it has Jurisdiction to issue mandatory injunctions on an interlocutory application the court finds that the Applicant has not established any special circumstance that would enable the court to exercise its discretion in his favour at this stage. The applicant got registered with the suit property in 2008 and has never commenced appropriate proceedings to evict the persons who had been occupying the developments on it. The fact that he had commenced the validation process as evidenced in the letter by the Permanent Secretary, Ministry of Housing dated 8th August 2012 shows that the Applicant was aware that the

process needed to be pursued to enable him take vacant possession of the suit property. The materials presented before the court do not show whether the validation exercise has been competed in his favour or declined. This may come out clearly after the hearing of the petition.

c.That for reasons set out in (a) and (b) above, the court finds that the mandatory injunction sought in prayer 3 cannot be granted at this interlocutory stage. However prayer 2 is granted as prayed with costs.

S.M. KIBUNJA

ENVIRONMENT AND LAND – JUDGE

DATED AND DELIVERED THIS 30TH DAY OF SEPTEMBER 2015

IN PRESENCE OF

PETITIONER/APPLICANT N/A

RESPONDENTS N/A

COUNSEL Mr. Oteino for Odhiambo Ouma for Petitioner/Applicant.

S.M. KIBUNJA

ENVIRONMENT AND LAND – JUDGE

30/9/2015

S.M. Kibunja J.

Oyugi Court clerk

Parties absent

Mr Otieno for Odhaimbo Ouma for Applicant/Petitioner

Matter is for Ruling. The other parties Counsel are absent.

S.M. KIBUNJA

ENVIRONMENT AND LAND – JUDGE

30/9/2015