[2018] KEELC 2393 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC CASE NO 593 OF 2016

MAHESH SHAH...........................................................................PLAINTIFF

VERSUS

CHIEF LAND REGISTRAR ............................................1ST DEFENDANT

AGNES WAMBUI MANJERU........................................2ND DEFENDANT

INSPECTOR GENERAL OF POLICE..........................3RD DEFENDANT

DIRECTOR OF CRIMINAL INVESTIGATIONS..... 4TH DEFENDANT

NATIONAL LAND COMMISSION...............................5TH DEFENDANT

THE ATTORNEY GENERAL...................................... 6TH DEFENDANT

RULING

1. On 3/6/2016, the plaintiff brought this suit through a plaint dated 2/6/2016 against the Chief Land Registrar and 5 others. His case is that in May 1997, he was registered as proprietor of Land Parcel Number Ruiru Township/660 measuring approximately 1. 32 hectares (thesuit property). A certificate of lease was duly issued to him. In 2011, he misplaced the certificate of lease and in the same year, he applied to the Land Registrar to be issued with a replacement. A notice was published in the Kenya Gazette and he was subsequently issued with a replacement certificate of lease in the same year. Subsequently, in 2014, he learnt that the parcel register bore the name of Jetlak Foods Limited as the registered proprietor. This prompted him to file Civil Case Number 1248 of 2014 against Jetlack Foods Limited and the Chief Land Registrar, praying for rectification of the parcel register and cancellation of the title held by Jetlak Foods Limited. By consent of the parties to the suit, Jetlack Foods Limited agreed to submit its title to the Chief Land Registrar for cancellation.

2. The Plaintiff further contends that the 2nd defendant subsequently made false and malicious reports to the National Land Commission and to the Criminal Investigations Department resulting into his being threatened, intimidated and harassed to surrender his title. He contends that the 3rd, 4th and 5th defendants are in the process of facilitating transfer of the suit property to the 2nd defendant and revoking his title. Aggrieved, he brought this suit seeking the following prayers:

a) A declaration that the plaintiff is the proprietor of Title Number Ruiru Township/660.

b) A permanent injunction restraining the defendants herein by themselves, their employees, servants, agents and/or other persons claiming through them from entering, remaining thereon, disposing, trespassing on , charging, or in any way whatsoever from dealing with the suit property namely Title Number Ruiru Township/660.

c) A permanent injunction restraining the Defendants herein jointly and severally either by themselves, their servants, employees and or agents or otherwise howsoever from harassing the plaintiff/applicant or otherwise interfering with the plaintiff’s enjoyment and occupation of the suit property Title Number: Ruiru Township/660.

d) Costs of this suit

e) Any other relief the court may deem fit to make

3. Together with the plaint, the plaintiff brought a Notice of Motion dated 2/6/2016 seeking the following orders;

3. That the defendants be restrained jointly and severally either by themselves, their servants, employees and or agents or otherwise howsoever from transferring, charging, dealing, interfering with the plaintiff’s employment and occupation of the suit property Title Number: Ruiru Township/660 pending the hearing and determination of this suit.

4. That the defendants be restrained jointly and severally either by themselves, their servants, employees and or agents or otherwise howsoever from harassing the plaintiff/applicant or otherwise interfering with the plaintiff’s employment and occupation of the suit property Title Number: Ruiru Township/660 pending the hearing and determination of this suit.

5. The Notice of motion is supported by the plaintiff’s affidavit sworn on 2/6/2016. That application is the subject of this ruling.

6. The application was canvassed through written submissions. In written submissions dated 17/7/2017, the applicant contends that he is the lawful proprietor of the suit property and he has been in possession of the suit property since 1997. He challenges the 2nd defendant’s contention that the suit property was allotted to her late husband and faults the exhibited letter of allotment on the ground that it contains two joint allottees yet the purported resultant title has only one proprietor. He further faults the 2nd defendants’ title on the ground that there is no evidence that she is the administrator of the estate of any of the two joint allottees.

7. In her unsigned submissions filed on 19/10/2017, the 2nd defendant disputes the contention that the plaintiff is the one occupying the suit property. She contends that she is the one in possession of the suit property. She further contends that investigations carried out by the Department of Criminal Investigations revealed that the plaintiff’s title documents were outright forgeries. She further argues that the National Land Commission similarly investigated the two titles and established that the plaintiff’s title is fraudulent. She argues that the plaintiff is using the court process to purify his fraudulent documents. She further submits that the consent order relied upon by the plaintiff was procured through collusion in her absence and cannot be used against her. She urges the court to dismiss the application.

8. The court has considered the application together with the rival affidavits and submissions. The court has also considered the relevant law and guiding principles on a plea for an interlocutory injunctive order. The applicant was required to place before the court materials that demonstrate that he has a prima facie case with a probability of success. Secondly, he was required to demonstrate that he stands to suffer irreparable injury that cannot be adequately indemnified by way of damages if the injunctive order is not granted. Were the court to be in doubt, the application is to be determined on a balance of convenience.

9. What emerges from the evidentiary materials and submissions placed before the court is that both the plaintiff and the 2nd defendant hold parallel titles to the same suit property. Both the Department of Criminal Investigations and the National Land Commission have handled the issue of duplicate titles and have raised doubts about the authenticity of the plaintiff’s title. The National Land Commission has similarly made a finding which is not favourable to the plaintiff on the issue of duplicate titles.

10. Against the above background, the plaintiff seeks an order restraining the 2nd defendant who too holds a title to the suit property registered in the joint names of the 2nd defendant and Candilla Ngairi Manjeru. The plaintiff says that he was registered as proprietor of the suit property in May 1997 but he does not disclose how he came to be registered as proprietor and what it is that renders his title more authentic to warrant grant of an injunctive order against the 2nd defendant who holds a title to the same property.

11. In view of the rival “titles” and findings by the Directorate of Criminal Investigations and the National Land Commission, the court is not satisfied that a prima facie case has been established as against the 2nd defendant to warrant grant of the injunctive order against her.

12. The upshot of the above finding is that the plaintiff’s Notice of Motion dated 2/6/2016 is dismissed for lack of merit.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 17TH DAY OF JULY 2018.

B M EBOSO

JUDGE

In the presence of:-

Ms Halima Abdi - Court Clerk