[2023] KEELC 20551 (KLR)

Masale v Zonga & another (Environment & Land Case E022 of 2023) [2023] KEELC 20551 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEELC 20551 (KLR)

Republic of Kenya

In the Environment and Land Court at Kwale

Environment & Land Case E022 of 2023

AE Dena, J

October 11, 2023

Between

Eliakim Milton Masale

Plaintiff

and

Omar Mbwana Zonga

1st Defendant

Land Registrar, Kwale County

2nd Defendant

Ruling

1The application subject of this ruling is dated 20/3/2023. The same is made pursuant to the provisions of Order 40 Rule 1,2,2,4 of the Civil Procedure Rulessection 1A,3A,63[e] of the Civil Procedure Act. Counsel for the applicant seeks for orders;1. Spent2. That pending hearing and determination of this application interpartes this honourable court do issue an injunction restraining the 1st defendant/respondent by himself, agents, servants, contractors or in any other manner howsoever from entering upon, carrying on any construction or otherwise dealing or interfering with the property registered as Kwale/Diani Beach Block/6703. That pending hearing of this application inter partes the 2nd defendant be restrained from making any further entries in the proprietorship register of the property Kwale/Diani Beach Block/670 to the plaintiffs detriment4. That pending hearing and determination of the suit this honourable court do issue an injunction restraining the 1st defendant/respondent by himself, agents, servants, contractors or in any other manner howsoever from entering upon, carrying on any construction or otherwise dealing or interfering with the property registered as Kwale/Diani Beach Block/6705. That pending the hearing and determination of the suit the 2nd Defendant be restrained from making any further entries in the proprietorship register to the plaintiff’s detriment.6. Spent7. That there be an order for costs thereof.

2The application is supported by the affidavit of Eliakim Milton Masale and is premised on the following verbatim grounds; -1. That the plaintiff holds title as first allotee and registered owner of the suit property2. That unknown persons have within the course of January 2023 or thereabout embarked on putting up a boundary wall around the property3. That the said activities have been informed by an attempt to fraudulently alter the ownership/registration status of the property4. That it has taken time and effort to gain information regarding the person associated with these activities5. That the plaintiff stands to be seriously prejudiced should the fraudulent scheme to deprive him off the property and the activities informed thereby proceed without abatement6. That on the facts there are grounds sufficient to warrant the courts intervention in the manner sought herein.

3The application is opposed by a replying affidavit sworn by the 1st defendant Omar Mbwana Zonga. The deponent avers that the applicant is a stranger to the defendants and that he is not aware the Applicant is the registered proprietor of property Kwale/Diani Beach Block/670 (hereinafter referred to as the suit property). It is averred that the applicant has not annexed any document in proof that he is the registered owner of the suit property.

4He further states that the photographs annexed by the applicant appear to be of a perimeter wall he had built on his property and which is the suit property herein. The deponent refers to a copy of the title deed to the suit property registered in his favour. He denies the allegation that the title in his possession is a forgery and states that the same is lawful, valid and genuine.

5It is averred that no evidence has been tendered of reconstruction of the registrar’s records. He states that he has put up a perimeter wall on his property and it is the applicant that does not know where his alleged title falls on the ground. The court is urged to dismiss the application.

6The plaintiff/applicant filed a further affidavit on 15/5/2023. It is averred that his title flows from government and was transferred to him by the Settlement Fund Trustees, dates back to 1992 and issued to him on 21/3/1995. He states that the 1st defendant omitted a copy of an official search in respect of the suit property purportedly issued to him in the year 2014 hence bespeaking his ownership from 2005. The applicant refers to the annexed official receipts for rates payments made by him over the suit property.

7Parties canvassed the application by way of written submissions which I have considered. The main issue for determination is whether the applicant has made out a case for the granting of orders of temporary injunction.

8The law governing the granting of interlocutory injunction is set out under Order 40(1) (a) and (b) of the Civil Procedure Rules 2010 which provides that: -Where in any suit it is proved by affidavit or otherwise—(a)That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or [Rev. 2012] Civil Procedurecap. 21 [Subsidiary] C17 – 165;(b)That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further."

9The conditions for consideration in granting an injunction were settled in the celebrated case of Giella v Cassman Brown & Company Limited(1973) E A 358, where the court expressed itself on the condition’s that a party must satisfy for the court to grant an interlocutory injunction as follows: -Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience.

10The test for granting of an interlocutory injunction was considered in the American Cyanamid Co v Ethicom Limited (1975) A AER 504 where three elements were noted to be of great importance namely, there must be a serious/fair issue to be tried, damages are not an adequate remedy and the balance of convenience lies in favour of granting or refusing the application.

11From the provisions of Order 40 rule 1 of the Civil Procedure Rules, the courts paramount consideration before granting injunctive orders is proof that the subject property is in danger of being wasted or damaged. In the instant suit it is noted that the suit property has two title deeds with the respective parties claiming ownership of the same. The applicant’s title was issued on 21/3/1995 and a search conducted on 4/11/2020 indicates that he was still the registered owner as at that time. The 1st Respondent’s title on the other hand was issued on 29/10/2002.

12The question which therefore arises is whether the applicant has established a prima facie case. In Mrao Ltd v First American Bank of Kenya and 2 others,(2003) KLR 125 which was cited with approval in Moses C Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others, (2014) eKLR, the Court of Appeal defined a prima facie case as: -A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”.

13The applicant contends that he is the lawfully registered proprietor of the suit property and the title deed by the 1st defendant is fraudulent. He further states that the 1st defendant/respondent has trespassed into the suit property and is putting up a perimeter wall. The same is evidenced by photographs attached to the application. The Respondent has not disputed the construction of the perimeter wall and states that the same is on his suit property. The court is yet to establish the validity of the titles held by the parties herein. But before then it is important to preserve the substratum of the suit and which is the suit property herein. I am therefore satisfied that the applicant has established a prima facie case to warrant the granting of the orders of injunction.

14Having found that the Applicant has established a prima facie case, the court will proceed to consider if the two remaining conditions for the granting of orders of injunction have been met as it is a requirement that all the three conditions be fulfilled before an order of injunction is granted. I am guided by the decision inNguruman LimitedvJan Bonde Nielsen & 2others, CA No 77 of 2012, where the Court expressed itself on the importance of satisfying all the three requirements for an order of injunction as follows: -In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;(a)establish his case only at a prima facie level,(b)demonstrate irreparable injury if a temporary injunction is not granted, and(c)ally any doubts as to (b) by showing that the balance of convenience is in his favour.

15The above are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co LtdvAfraha Education Society [2001] Vol 1 EA 86.

16The applicant has deponed that the Respondent is undertaking developments on the suit property and the same has been demonstrated by the construction of the perimeter wall. In my view the said construction is sufficient demonstration of irreparable loss being occasioned to theapplicant. The court is further alive to the allegations of disappearance of documents concerning the suit parcel at the lands registry as informed by the gazette notice seeking to replace the land register and the letter by theapplicant intimating to the 2nd defendant that records of the suit parcel could at one point not be traced after the request for an official search of the same. The applicant’s anxiety is therefore justified. It is my view that the second limb has been proved.

17It is evident that the balance of convenience tilts in favour of the plaintiff/applicant. I am guided by the decision in Amir SuleimanvAmboseli Resort Limited [2004] eKLR where the learned judge offered further elaboration on what is meant by “balance of convenience” thus;-The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”

18From the foregoing, I am convinced that there is a lower risk in granting the orders sought than not granting them. The court will make a determination on ownership of the suit parcel after weighing the evidence of both parties on the scales of justice upon full hearing of the main suit. It is therefore safe to preserve the suit property as the court has not had opportunity to interrogate all the documents that might be relevant in providing a history of events leading to the double registration of title in the name of the Plaintiff and that of the respondent. InRobert Mugo Wa KaranjavEcobank (Kenya) Limited &another [2019) eKLR the court in deciding on an injunction application stated;Circumstances for consideration before granting a temporary injunction under order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”

19I am convinced that the plaintiff/ applicant has met the criteria for grant of the orders sought and proceed to order as follows;i.An order of injunction is hereby issued restraining the 1st defendant/respondent by himself, agents, servants, contractors or in any other manner howsoever from carrying on any construction or otherwise dealing or interfering with the property registered as Kwale/Diani Beach Block/670 pending the hearing and determination of this suit.ii.The 2nd defendant be and is hereby restrained from making any further entries in the proprietorship register of the property Kwale/Diani Beach Block/670 to the Plaintiffs detriment pending the hearing and determination of this suit.iii.I further order the 2nd defendant shall register an order of inhibition in terms of (ii) above against land parcel No. Kwale/Diani Beach Block/670 pending the hearing and determination of this suit.iv.Costs will abide the outcome of the suit.It is so ordered.

DELIVERED AND DATED AT KWALE THIS 11TH DAY OF OCTOBER, 2023A.E. DENAJUDGERuling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:Mr. Mwakisha for the Plaintiff /ApplicantsOdhiambo holding brief for Mr. Asige for the 1st Defendant/RespondentNo appearance for the 2nd DefendantMr. Da--niel Disii- Court AssistantPAGE | 3 ELC NO E022 OF 2013 LADY JUSTICE A.E. DENA