[2018] KEELC 806 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

THIKA ELC CASE NO.721 OF 2017

MARTIN MBUGUA.................................PLAINTIFF/APPLICANT

-VERSUS-

GLADYS GITHEGI....................1ST DEFENDANT/RESPONDENT

MUNGARU ENTERPRISES.....2ND DEFENDANT/RESPONDENT

RULING

The Plaintiff/Applicant herein Martin Mbugua has vide a Notice of Motion application dated 24th August 2017 sought for the following orders:-

1) That this Honourable Court do issue an order restraining the 1st and 2nd Defendants/Respondents, by themselves, their agents, servants officers and or otherwise from carrying out any operations and/or activities on any part of the ten(10) acres of land LR.No.10531, IR No.19076 measuring 957 acres in Kiambu County, Thika East District, sub-leased to the Applicant as originally demarcated in the presence of the Applicant and Directors of Mungaru Enterprises, when entering into the sub-lease agreement pending the hearing and determination of this suit.

2) That this Honourable Court do issue an order directing the OCS at Ngati Police Station to enforce the restraining orders issued by this Honourable Court pursuant to this application.

3) That this Honourable Court do make such orders as it may deem fit and just in the circumstances.

4) That costs of this application be provided for.

This application is supported by the grounds set out on the face of the application and on the Supporting Affidavit of the Applicant herein. These grounds are:-

a) The 2nd Respondent by virtue of a Tenancy Agreement date 1st August 2010 is a lessee of the piece of land LR.No.10531, IR No.19076 957acres in Kiambu County, Thika East District from the Salvation Army.

b) The 2nd Respondent then entered to a sub-lease with the Applicant to occupy a ten acres portion of the land LR.No.10531, IR No.19076 957 acres in Kiambu County, Thika East District, for a similar period as prescribed above and for similar mining purposes.

c) Upon the Applicant taking possession of the said piece of land and beginning the mining activities, the 2nd Respondent leased the adjacent portion of land to the 1st Respondent, who is also a relative of the agents/officers of the 2nd Respondent.

d) The parties had peacefully co-existed until last year, when the 1st Respondent began encroaching in the Applicant’s portion of land, with the encouragement of the 2nd Respondent.

e) The Defendants/Respondents have continued to threaten the peaceful occupancy and tenancy of the Plaintiff/Applicant by sending goons to intimidate and scare off any operations at the Plaintiff’s legally leased portion.

f) Despite intervention from the chief of the area and the administration police to have the Defendants restrained from encroaching, the Defendants have persistently been aggressive and provoking chaos by ignoring any attempts for peaceful resolution.

g) In fact the 1st Respondent on 23rd August 2017 sent a team ofgoons to supervise the unlawful encroachment into the Applicant’s portion of land with encouragement by the 2nd Respondent.

h) The Applicant has incurred substantial costs restoring the demarcation, which the 1st Respondent keep on demolishing and moving the boundary, hence encroaching into the Applicant’s portion of land.

i) It is therefore in the interest of justice that this application is heard and the orders sought granted.

In his Supporting Affidavit, the Applicant reiterated the contents of the grounds in support of his application. The Defendants/Respondents were served with the Summons to Enter Appearance and the instant application through Substituted Service as per the Affidavit of Service of Samuel Kairu filed in court on 14th November 2017.

The 1st Defendant/Respondent did not enter any appearance nor file any response to the instant application. However, the 2nd Respondent filed its Replying Affidavit on 18th December 2017, through the Law Firm of Kinuthia Kahindi & Co. Advocates.

George Muritu Gathecha T/A Mungaru Enterprisesswore aReplying Affidavitand admitted that 1stRespondent has her adjacent portion of property but he was not aware of any alleged encroachment into the Applicant’s portion of land by the said 1stRespondent. He also denied having encouraged the 1stRespondent to encroach on the Applicant’sportion of land. Further that there are several portions of the suit propertyallocated to several people to mine stones and there are no disputes and that this is the first dispute which he has been informed of since the other people live in harmony with each other. It was his allegation that the Applicant is trying to involve the 2ndRespondent in a personal dispute with the 1stRespondent which the 2ndRespondent has nothing to do with. It was his contention that the 2ndRespondent continues to support both parties and he urged them to live amicably. The deponent urged the Court to dismiss the instant application against the 2ndRespondent with costs.

The application was canvassed by way of written submissions which this Court has carefully considered, together with the cited authorities. The Court has also considered the whole pleadings and the annextures thereto and renders itself as follows;-

The Applicant herein has sought for injunctive orders against the Respondents which are equitable reliefs granted at the discretion of the court. However that discretion has to be exercised judicially and with reasons. See the case of Nyutu & Others…Vs…Gatheru & Others (1990) KLR 554, where the Court held that:-

“Whether or not to grant an injunction is in the discretion of theCourt and the discretion is a free one but must be judiciallyexercised”.

Further, the Court takes cognizance of the fact that at this interlocutory stage, the court is not called upon to determine the disputedissues with finality given that the available evidence now is only affidavitevidence. See the case ofAgip (K) Ltd...Vs...Maheshchandra Himatlal Vora & Others, Civil Appeal No.213 of 1999, where the Court held that:-

“In an application for injunction, the Court should not delve into substantive issues and make finally concluded views of the dispute before hearing oral evidence”.

All that the court is called upon to determine is whether the Applicant is deserving of the injunctive orders sought and based on the usual criteria set out in the case of Giella….Vs…Cassman Brown & Co. Ltd 1973 E.A 358. These criterias are:-

a) The Applicant must establish that he has a prima facie case with probability of success.

b) That the Applicant will suffer irreparable loss which cannot be adequately compensated in any way or by an award of damages.

c) When the Court is in doubt, to decide the case on a balance of convenience.

Therefore this Court will consider the available evidence, juxtapose it with the above states principles and then determine whether the Applicant is deserving of the orders sought.

The Applicant has to establish whether he has a prima-facie case with probability of success at the trial.

There is no doubt that the Applicant is a sub-lessee of the 2nd Defendant/Respondent herein. The 2nd Respondent is the main lessee of the suit property LR.No.10531 IR No.19076 measuring 957 Acres from Salvation Army, Kenya East Territory. The said Tenancy Agreement is marked MM-1 and was entered on 1st August 2010, and the lessee (2nd Respondent) was to use the land for mining of stones. There is no doubt that the 2nd Respondent leased 10 Acres out of 957 Acres to the Plaintiff herein vide a sub-lease dated 26th November 2013. The Applicant was to use and mine on the said 10 Acres for a similar term held by the main lessee.

It is also not in doubt that the main lessee/2nd Respondent has leased several other portions of land to several other persons, the 1st Defendant/Respondent being one of them. The Plaintiff and 2nd Respondent are in agreement that the 1st Defendant/Respondent’s portion of land is adjacent to the Plaintiff’s portion. The Plaintiff has alleged that the 1st Respondent with the encouragement of the 2nd Respondent has encroached on his portion of land. The 2nd Respondent has denied such knowledgement of encroachment and even encouragement of 1st Respondent to encroach on the Applicant’s portion of land. The 1st Respondent has not filed any response to deny the Applicant’s allegations.

Though the 2nd Respondent denied the Applicant’s allegation, it verily admitted that there is a dispute between the Plaintiff/Applicant and the 1st Respondent. The said dispute is over the boundaries of the two parties’ portion of land. Since the 1st Respondent did not dispute the Applicant’s allegations, the Court will haveno reasons to doubt the Applicant’s allegation against the 1stRespondent.

However, there is no sufficient evidence availed by the Applicant to confirm that the 2nd Respondent has encouraged the 1st Defendant/Respondent to encroach on the Applicant’s portion of land.

For the above reasons, the Court finds that the Applicant has established a prima-facie case against the 1st Respondent but not the 2nd Respondent herein.

On the second limb, it is evident that since the Applicant is a lessee and expects to rip benefits from the sub-lease, if the 1st Respondent continues with the said encroachment, then the Applicant will suffer irreparable loss and since the said encroachment infringes on the Applicant’s right, the Court cannot find and hold that damages would be sufficient to compensate the Applicant. See the case of Panari Enterprises Ltd...Vs..Lijoodi & 2 Others (2014) eKLR, where the Court held that:-

“Does an award of damages suffice to the Plaintiff? Land is unique and no one parcel can be equated in value to another. Though the value of the suit property can be ascertained, it would not be right to say that the Plaintiff can be compensated in damages. I hold the view that damages aren’t always a suitable remedy where the Plaintiff has established a clear legal right or breach”.

It is evident that if the 1st Respondent is not stopped, the Applicant will continue to suffer loss which might cause irreparable harm as the 1stRespondent would be interfering with the Applicant’s right to minepeacefully on the suit property as per the term of his sub-lease.

Further, the balance of convenience herein would tilt in favour of maintaining the status quo and the status quo herein is what existed before the encroachment or the wrongful act of the 1st Respondent. See the case of Agnes Adhiambo Ojwang ..Vs.. Wycliffe Odhiambo Ojijo, Kisumu HCCC No.205 of 2000, where the Court held that:-

“the purpose of injunction is to preserve the status quo and thestatus quo to be preserved is the one that existed before the wrongful act”.

Having now carefully considered the instant Notice of Motion application dated 24th August 2017, the Court finds it merited in terms of prayers No.4 and 5 against the 1st Defendant/Respondent herein only. There is no evidence availed to warrant this Court to issue orders against the 2nd Respondent/Defendant herein who is the sub-lessee.

Further, costof this application shall be in the cause. However, the Applicant herein is directed to prepare the main suit for hearing expeditiously so that the issues in dispute can be resolved at once.

Further, the Court finds that the claim herein falls within the pecuniary jurisdiction of the Chief Magistrate’s Court. For the above reasons, this suit will be transferred immediately to Thika Chief Magistrate’s Court for hearing and determination in accordance withSection 18(1)of theCivil Procedure Act.

It is so ordered.

Dated, Signed and Delivered at Thika this 16thday ofNovember 2018.

L. GACHERU

JUDGE

In the presence of

Mr. Githui holding brief Mr. Kairu for Plaintiff/Applicant

No appearance for 1st Defendant/Respondent

M/S Kahindi for 2nd Defendant/Respondent

Lucy - Court clerk.

Court – Ruling read in open court.

L. GACHERU

JUDGE

16/11/2018